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Laws, Vol. 7, Pages 30: Towards Changing Compulsory Community Mental Health Treatment in New Zealand: Shining Light on How Community Treatment Orders Are Producedhttp://www.mdpi.com/2075-471X/7/3/30
In this paper, we use a constructed scenario to illustrate making a compulsory community treatment order in the New Zealand context. Drawing on publicly available documentation, we outline the existing mental health law framework that produces community treatment orders and emerging complex problems of their high, increasing and disproportionate use. We provide examples of human rights, indigenous and clinical effectiveness research that appear to be destabilising the existing mental health law framework. We argue assemblage theory (Deleuze &amp;amp; Guattari) is a useful theoretical tool to unpack the making and continued use of compulsory community treatment orders in the context of complex destabilising and stabilising influences. This is followed by an outline of the concept of assemblage with reference to the constructed scenario, focusing on processes, practices, places, types of knowledge, roles, documents and how they connect to produce certain effects that both enable and constrain participants&amp;rsquo; actions. In the New Zealand context, we examine the potential for assemblage theory to generate new ways of thinking about compulsory mental health treatment in community settings by challenging perceived limitations and revealing opportunities for participants to act otherwise. We conclude with a proposal for further research shaped by this theory that explores the making of actual community treatment orders to reveal where there is potential to change existing relations towards more positive effects for participants.Laws, Vol. 7, Pages 30: Towards Changing Compulsory Community Mental Health Treatment in New Zealand: Shining Light on How Community Treatment Orders Are Produced

In this paper, we use a constructed scenario to illustrate making a compulsory community treatment order in the New Zealand context. Drawing on publicly available documentation, we outline the existing mental health law framework that produces community treatment orders and emerging complex problems of their high, increasing and disproportionate use. We provide examples of human rights, indigenous and clinical effectiveness research that appear to be destabilising the existing mental health law framework. We argue assemblage theory (Deleuze &amp;amp; Guattari) is a useful theoretical tool to unpack the making and continued use of compulsory community treatment orders in the context of complex destabilising and stabilising influences. This is followed by an outline of the concept of assemblage with reference to the constructed scenario, focusing on processes, practices, places, types of knowledge, roles, documents and how they connect to produce certain effects that both enable and constrain participants&amp;rsquo; actions. In the New Zealand context, we examine the potential for assemblage theory to generate new ways of thinking about compulsory mental health treatment in community settings by challenging perceived limitations and revealing opportunities for participants to act otherwise. We conclude with a proposal for further research shaped by this theory that explores the making of actual community treatment orders to reveal where there is potential to change existing relations towards more positive effects for participants.

]]>Towards Changing Compulsory Community Mental Health Treatment in New Zealand: Shining Light on How Community Treatment Orders Are ProducedAlison SchnellerKatey ThomPeter Adamsdoi: 10.3390/laws7030030Laws2018-08-14Laws2018-08-1473Article3010.3390/laws7030030http://www.mdpi.com/2075-471X/7/3/30Laws, Vol. 7, Pages 29: Here to Stay: The Evolution of Sexual and Reproductive Health and Rights in International Human Rights Lawhttp://www.mdpi.com/2075-471X/7/3/29
Sexual and reproductive health and rights have increasingly been recognized in the international arena, but their evolution and the definition of their scope and content have not been received without controversy. From population control to human rights, from demographers&amp;rsquo; competence to governmental prerogative, from couples&amp;rsquo; rights to universal rights, this article will present an overview of the evolution of sexual and reproductive rights in the international arena. The development of these rights cannot be read in isolation but must be analyzed together with the broader landscape that hosts social and political movements, ideologies, religions, and revolutions. Understanding sexual and reproductive health and rights as historical creations, rather than timeless givens, enables us to devise historically informed instruments and policies that are more likely to succeed. This article contributes to the scholarly literature by providing an overview of past trends and of the conditions under which they occurred. Retracing the history of these rights enables us to clarify the scope of the state&amp;rsquo;s obligations to realize the right to sexual and reproductive health, to improve monitoring opportunities, and to ensure accountability for violations. This article explores these (and forthcoming) developments contributing to identify the existing obligations, the relevant actors, and the challenges that lie ahead.Laws, Vol. 7, Pages 29: Here to Stay: The Evolution of Sexual and Reproductive Health and Rights in International Human Rights Law

Sexual and reproductive health and rights have increasingly been recognized in the international arena, but their evolution and the definition of their scope and content have not been received without controversy. From population control to human rights, from demographers&amp;rsquo; competence to governmental prerogative, from couples&amp;rsquo; rights to universal rights, this article will present an overview of the evolution of sexual and reproductive rights in the international arena. The development of these rights cannot be read in isolation but must be analyzed together with the broader landscape that hosts social and political movements, ideologies, religions, and revolutions. Understanding sexual and reproductive health and rights as historical creations, rather than timeless givens, enables us to devise historically informed instruments and policies that are more likely to succeed. This article contributes to the scholarly literature by providing an overview of past trends and of the conditions under which they occurred. Retracing the history of these rights enables us to clarify the scope of the state&amp;rsquo;s obligations to realize the right to sexual and reproductive health, to improve monitoring opportunities, and to ensure accountability for violations. This article explores these (and forthcoming) developments contributing to identify the existing obligations, the relevant actors, and the challenges that lie ahead.

]]>Here to Stay: The Evolution of Sexual and Reproductive Health and Rights in International Human Rights LawLucía Berro Pizzarossadoi: 10.3390/laws7030029Laws2018-08-07Laws2018-08-0773Article2910.3390/laws7030029http://www.mdpi.com/2075-471X/7/3/29Laws, Vol. 7, Pages 28: The Rights Network: 100 Years of the Hohfeldian Rights Analytichttp://www.mdpi.com/2075-471X/7/3/28
This paper sets out to reconsider the Hohfeldian framework of rights in celebration of the centenary anniversary of their original publication. It begins by conceptualizing each of the Hohfeldian incidents or rights before outlining the molecular or complex structure of rights to &amp;ldquo;things&amp;rdquo;. I adopt a broad use of the term of &amp;ldquo;right&amp;rdquo; and apply it to Legal, Moral, Equitable and Human conceptions and constructions. It sets out an argument in favor of a further definitional model&amp;mdash;in addition to Hohfeld&amp;rsquo;s scheme of opposites and correlatives&amp;mdash;which focuses on the function of these conceptual rights. Finally, it sets out to provide a model of rights as forming a network within a given community and the exponential growth of &amp;ldquo;rights-connections&amp;rdquo; within an expanding community. This is used to frame responses to common criticisms of &amp;ldquo;rights talk&amp;rdquo; and the balance of benefits and burdens on account of such a rights network. Ultimately, this paper seeks to demonstrate the benefit, and indeed necessity, of the Hohfeldian model in any discussion of rights. Without it &amp;ldquo;rights talk&amp;rdquo; is debased and impoverished.Laws, Vol. 7, Pages 28: The Rights Network: 100 Years of the Hohfeldian Rights Analytic

This paper sets out to reconsider the Hohfeldian framework of rights in celebration of the centenary anniversary of their original publication. It begins by conceptualizing each of the Hohfeldian incidents or rights before outlining the molecular or complex structure of rights to &amp;ldquo;things&amp;rdquo;. I adopt a broad use of the term of &amp;ldquo;right&amp;rdquo; and apply it to Legal, Moral, Equitable and Human conceptions and constructions. It sets out an argument in favor of a further definitional model&amp;mdash;in addition to Hohfeld&amp;rsquo;s scheme of opposites and correlatives&amp;mdash;which focuses on the function of these conceptual rights. Finally, it sets out to provide a model of rights as forming a network within a given community and the exponential growth of &amp;ldquo;rights-connections&amp;rdquo; within an expanding community. This is used to frame responses to common criticisms of &amp;ldquo;rights talk&amp;rdquo; and the balance of benefits and burdens on account of such a rights network. Ultimately, this paper seeks to demonstrate the benefit, and indeed necessity, of the Hohfeldian model in any discussion of rights. Without it &amp;ldquo;rights talk&amp;rdquo; is debased and impoverished.

]]>The Rights Network: 100 Years of the Hohfeldian Rights AnalyticJack Clayton Thompsondoi: 10.3390/laws7030028Laws2018-07-16Laws2018-07-1673Article2810.3390/laws7030028http://www.mdpi.com/2075-471X/7/3/28Laws, Vol. 7, Pages 27: Donald Trump and Institutional Change Strategieshttp://www.mdpi.com/2075-471X/7/3/27
This article integrates three fields of study: the &amp;ldquo;regime politics&amp;rdquo; paradigm in law and courts, the &amp;ldquo;institutional change&amp;rdquo; approach in public policy, and the &amp;ldquo;unilateral presidency&amp;rdquo; literature. In doing so, we show how law, politics, and public policy are inextricably linked, and that researchers can borrow assumptions, methods, and theories from a variety of fields. We use Donald Trump&amp;rsquo;s early presidency to show how political actors (especially presidents) can use four different change strategies. In the case of Trump, we highlight: shifting of decision-making authority via insurrectionary displacement; the elimination of the individual mandate via subversive layering; a change in drone use policy via opportunistic conversion; and a gradual desensitization and change in school choice education policy via symbiotic drift. We conclude by offering lessons for all three literatures we incorporate, as well as a way forward for studying a presidential administration that many find difficult to analyze.Laws, Vol. 7, Pages 27: Donald Trump and Institutional Change Strategies

This article integrates three fields of study: the &amp;ldquo;regime politics&amp;rdquo; paradigm in law and courts, the &amp;ldquo;institutional change&amp;rdquo; approach in public policy, and the &amp;ldquo;unilateral presidency&amp;rdquo; literature. In doing so, we show how law, politics, and public policy are inextricably linked, and that researchers can borrow assumptions, methods, and theories from a variety of fields. We use Donald Trump&amp;rsquo;s early presidency to show how political actors (especially presidents) can use four different change strategies. In the case of Trump, we highlight: shifting of decision-making authority via insurrectionary displacement; the elimination of the individual mandate via subversive layering; a change in drone use policy via opportunistic conversion; and a gradual desensitization and change in school choice education policy via symbiotic drift. We conclude by offering lessons for all three literatures we incorporate, as well as a way forward for studying a presidential administration that many find difficult to analyze.

]]>Donald Trump and Institutional Change StrategiesJordan T. CashDave Bridgedoi: 10.3390/laws7030027Laws2018-07-06Laws2018-07-0673Article2710.3390/laws7030027http://www.mdpi.com/2075-471X/7/3/27Laws, Vol. 7, Pages 26: Paradigm Shift or Paradigm Paralysis? National Mental Health and Capacity Law and Implementing the CRPD in Scotlandhttp://www.mdpi.com/2075-471X/7/3/26
The United Nations Convention on the Rights of Persons with Disabilities (CRPD) highlights the need to actively remove obstacles to, and promote, the full and equal enjoyment of human rights by persons with disabilities. This is challenging us to revisit existing conceptions about what is genuine equal and non-discriminatory enjoyment of human rights by persons with cognitive, intellectual and psychosocial disabilities and to accept that a real and fundamental culture change is required in order to achieve this. Whilst many states are seeking to address CRPD requirements in law and policy, including those identified in its Article 12, it is arguable that these do not go far enough in order to secure this culture change. This article considers three issues that need to be resolved as part of the process of achieving this paradigm shift, namely capacity assessments as thresholds for involuntary interventions, authorising involuntary interventions and support for the exercise of legal capacity, both generally and in the particular context of Scotland&amp;rsquo;s mental health and capacity laws. In doing so, it argues that it is debatable whether the CRPD paradigm shift can be realistically achieved by simply adapted or supplementing current legal and policy models.Laws, Vol. 7, Pages 26: Paradigm Shift or Paradigm Paralysis? National Mental Health and Capacity Law and Implementing the CRPD in Scotland

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) highlights the need to actively remove obstacles to, and promote, the full and equal enjoyment of human rights by persons with disabilities. This is challenging us to revisit existing conceptions about what is genuine equal and non-discriminatory enjoyment of human rights by persons with cognitive, intellectual and psychosocial disabilities and to accept that a real and fundamental culture change is required in order to achieve this. Whilst many states are seeking to address CRPD requirements in law and policy, including those identified in its Article 12, it is arguable that these do not go far enough in order to secure this culture change. This article considers three issues that need to be resolved as part of the process of achieving this paradigm shift, namely capacity assessments as thresholds for involuntary interventions, authorising involuntary interventions and support for the exercise of legal capacity, both generally and in the particular context of Scotland&amp;rsquo;s mental health and capacity laws. In doing so, it argues that it is debatable whether the CRPD paradigm shift can be realistically achieved by simply adapted or supplementing current legal and policy models.

]]>Paradigm Shift or Paradigm Paralysis? National Mental Health and Capacity Law and Implementing the CRPD in ScotlandJill Stavertdoi: 10.3390/laws7030026Laws2018-06-29Laws2018-06-2973Article2610.3390/laws7030026http://www.mdpi.com/2075-471X/7/3/26Laws, Vol. 7, Pages 25: A Primer on Disability Discrimination in Higher Educationhttp://www.mdpi.com/2075-471X/7/3/25
This article provides an overview of key issues and a focus on some of the most significant and important recent developments that should be given a high priority by university attorneys and higher education administrators and policymakers. It emphasizes the role that administrators responsible for facilitating or coordinating disability services on campus can play in ensuring that faculty members, staff members, and other administrators have the knowledge and tools to ensure access and also to avoid liability to the institution. Major changes in the Trump administration and Congress may signal changes that could affect disability discrimination issues on campus. These changes include changed regulatory guidance, reduced appropriations (including ripple effects from funding for veterans and vocational rehabilitation), and enforcement approaches. While repeal of the ADA is unlikely, regulatory activities might affect its impact.Laws, Vol. 7, Pages 25: A Primer on Disability Discrimination in Higher Education

This article provides an overview of key issues and a focus on some of the most significant and important recent developments that should be given a high priority by university attorneys and higher education administrators and policymakers. It emphasizes the role that administrators responsible for facilitating or coordinating disability services on campus can play in ensuring that faculty members, staff members, and other administrators have the knowledge and tools to ensure access and also to avoid liability to the institution. Major changes in the Trump administration and Congress may signal changes that could affect disability discrimination issues on campus. These changes include changed regulatory guidance, reduced appropriations (including ripple effects from funding for veterans and vocational rehabilitation), and enforcement approaches. While repeal of the ADA is unlikely, regulatory activities might affect its impact.

]]>A Primer on Disability Discrimination in Higher EducationLaura Rothsteindoi: 10.3390/laws7030025Laws2018-06-28Laws2018-06-2873Conference Report2510.3390/laws7030025http://www.mdpi.com/2075-471X/7/3/25Laws, Vol. 7, Pages 24: Copyright User Rights and Remedies: An Access to Justice Perspectivehttp://www.mdpi.com/2075-471X/7/3/24
In contemporary copyright law, there is an ongoing debate around the nature and scope of the rights users should have to copyright works, exacerbated by ongoing technological developments. Within that debate, this article queries the value of looking at the remedies users may have against copyright holders restricting their legitimate uses of works, as a means to further elucidate the nature and scope of user rights. While there is some value in looking at remedies to situate copyright user rights, an access to justice perspective to rights and remedies suggests that such approach may be too limiting with respect to the position of potential claimants in a legal system. On that basis, this paper identifies structural deficiencies of copyright user rights and proposes an analytical framework towards achieving greater &amp;ldquo;justice for users&amp;rdquo; both in the realm of public law and private law.Laws, Vol. 7, Pages 24: Copyright User Rights and Remedies: An Access to Justice Perspective

In contemporary copyright law, there is an ongoing debate around the nature and scope of the rights users should have to copyright works, exacerbated by ongoing technological developments. Within that debate, this article queries the value of looking at the remedies users may have against copyright holders restricting their legitimate uses of works, as a means to further elucidate the nature and scope of user rights. While there is some value in looking at remedies to situate copyright user rights, an access to justice perspective to rights and remedies suggests that such approach may be too limiting with respect to the position of potential claimants in a legal system. On that basis, this paper identifies structural deficiencies of copyright user rights and proposes an analytical framework towards achieving greater &amp;ldquo;justice for users&amp;rdquo; both in the realm of public law and private law.

]]>Copyright User Rights and Remedies: An Access to Justice PerspectivePascale Chapdelainedoi: 10.3390/laws7030024Laws2018-06-27Laws2018-06-2773Article2410.3390/laws7030024http://www.mdpi.com/2075-471X/7/3/24Laws, Vol. 7, Pages 23: A Right Not to Be Mapped? Augmented Reality, Real Property, and Zoninghttp://www.mdpi.com/2075-471X/7/2/23
The digital mapping applications underlying augmented reality have strong public benefits but can also have unappreciated effects on real property. In recent litigation on Pok&amp;eacute;mon Go, an enhanced digital mapping application in which players participate in a digital scavenger hunt by visiting real world locations, homeowners alleged that the augmented reality application harmed their residential properties by increasing the number of people in their residential areas. However, neither the existing laws on intellectual property nor those for real property are designed to address these types of harms. On the one hand, real property torts, such as nuisance and trespass, on which the homeowners relied, are ill-suited to address harms from a digital application as they are based on a right to exclude and consent. On the other hand, intellectual property laws have not focused on harms that could result from the intersection of intellectual property rights and real property. If it were to be framed anew, the basis of the homeowners&amp;rsquo; claims would be most analogous to asserting &amp;ldquo;a right not to be mapped.&amp;rdquo; However, there is not yet a &amp;ldquo;right not to be mapped&amp;rdquo; in law, and there are compelling reasons for the law not to create one. We recommend three alternative mechanisms to regulate the relationship between augmented reality and real property. We recommend the application of zoning principles as a legal mechanism designed for location-sensitive regulation, which can balance the concerns of individual real property owners, as well as the larger context of community and city interests, and be adapted to innovative technologies such as augmented reality. Additionally, we suggest that catalogues of augmented reality applications be created to support zoning decisions and to provide public notice. We also consider the possibility of licensing schemes with micropayments for real properties affected by augmented reality.Laws, Vol. 7, Pages 23: A Right Not to Be Mapped? Augmented Reality, Real Property, and Zoning

The digital mapping applications underlying augmented reality have strong public benefits but can also have unappreciated effects on real property. In recent litigation on Pok&amp;eacute;mon Go, an enhanced digital mapping application in which players participate in a digital scavenger hunt by visiting real world locations, homeowners alleged that the augmented reality application harmed their residential properties by increasing the number of people in their residential areas. However, neither the existing laws on intellectual property nor those for real property are designed to address these types of harms. On the one hand, real property torts, such as nuisance and trespass, on which the homeowners relied, are ill-suited to address harms from a digital application as they are based on a right to exclude and consent. On the other hand, intellectual property laws have not focused on harms that could result from the intersection of intellectual property rights and real property. If it were to be framed anew, the basis of the homeowners&amp;rsquo; claims would be most analogous to asserting &amp;ldquo;a right not to be mapped.&amp;rdquo; However, there is not yet a &amp;ldquo;right not to be mapped&amp;rdquo; in law, and there are compelling reasons for the law not to create one. We recommend three alternative mechanisms to regulate the relationship between augmented reality and real property. We recommend the application of zoning principles as a legal mechanism designed for location-sensitive regulation, which can balance the concerns of individual real property owners, as well as the larger context of community and city interests, and be adapted to innovative technologies such as augmented reality. Additionally, we suggest that catalogues of augmented reality applications be created to support zoning decisions and to provide public notice. We also consider the possibility of licensing schemes with micropayments for real properties affected by augmented reality.

]]>A Right Not to Be Mapped? Augmented Reality, Real Property, and ZoningElizabeth F. JudgeTenille E. Browndoi: 10.3390/laws7020023Laws2018-06-04Laws2018-06-0472Article2310.3390/laws7020023http://www.mdpi.com/2075-471X/7/2/23Laws, Vol. 7, Pages 22: Consumers’ Experiences of Mental Health Advance Statementshttp://www.mdpi.com/2075-471X/7/2/22
Mental health psychiatric advance directives, advance statements, and similar documents are designed to convey a person&amp;rsquo;s treatment preferences to their treating clinicians at times when, due to their mental health, their ability to communicate or make decisions might be impaired. This paper explores the current debates in the literature and presents the findings of a small qualitative study that explored the experiences of people who had completed advance statements in Victoria, Australia. Data was collected through interviews with participants and analysis of their advance statement. Participants completed their advance statements for two main reasons; to authorise future treatment or to limit the power of their treating team. Participants also included non-treatment preferences that were linked to their recovery and pragmatic considerations, such as contact details and dietary requirements. Participants who had used their advance statement reported a lack of acceptance or inclusion from clinicians. Further consideration of the legal enforceability of advance statements is necessary, and if they are to continue to lack legal force, much work remains to be done to support acceptance by clinicians.Laws, Vol. 7, Pages 22: Consumers’ Experiences of Mental Health Advance Statements

Mental health psychiatric advance directives, advance statements, and similar documents are designed to convey a person&amp;rsquo;s treatment preferences to their treating clinicians at times when, due to their mental health, their ability to communicate or make decisions might be impaired. This paper explores the current debates in the literature and presents the findings of a small qualitative study that explored the experiences of people who had completed advance statements in Victoria, Australia. Data was collected through interviews with participants and analysis of their advance statement. Participants completed their advance statements for two main reasons; to authorise future treatment or to limit the power of their treating team. Participants also included non-treatment preferences that were linked to their recovery and pragmatic considerations, such as contact details and dietary requirements. Participants who had used their advance statement reported a lack of acceptance or inclusion from clinicians. Further consideration of the legal enforceability of advance statements is necessary, and if they are to continue to lack legal force, much work remains to be done to support acceptance by clinicians.

]]>Consumers’ Experiences of Mental Health Advance StatementsChris MayleaAnn JorgensenSarah MattaKatherine OgilviePaul Wallindoi: 10.3390/laws7020022Laws2018-05-28Laws2018-05-2872Article2210.3390/laws7020022http://www.mdpi.com/2075-471X/7/2/22Laws, Vol. 7, Pages 21: #MeToo? Legal Discourse and Everyday Responses to Sexual Violencehttp://www.mdpi.com/2075-471X/7/2/21
Legal consciousness scholars identify the ways in which law is referenced to authorize, define and evaluate behaviors and choices that occur far outside any formal legal framework. They define legality as the &amp;ldquo;meanings, sources of authority, and cultural practices that are commonly recognized as legal, regardless of who employs them or for what ends.&amp;rdquo; We use the idea of legality to argue that, in matters of sexual assault and rape, the limits of the law extend beyond the courtroom. Rather than simply influencing or guiding only those who are willing to consult the law in their efforts to seek justice, laws and legal discourse have the potential to frame and constrain any attempt to discuss experiences of sexual violence. #MeToo and other forms of &amp;ldquo;consciousness-raising&amp;rdquo; for sexual violence highlight the limiting effects of law and legal discourse on public discussion of sexual violence. We find that, paradoxically, in the case of sexual violence law has the capacity to undermine the goals and benefits of consciousness-raising approaches, privatizing the experience of sexual assault and silencing its victims.Laws, Vol. 7, Pages 21: #MeToo? Legal Discourse and Everyday Responses to Sexual Violence

Legal consciousness scholars identify the ways in which law is referenced to authorize, define and evaluate behaviors and choices that occur far outside any formal legal framework. They define legality as the &amp;ldquo;meanings, sources of authority, and cultural practices that are commonly recognized as legal, regardless of who employs them or for what ends.&amp;rdquo; We use the idea of legality to argue that, in matters of sexual assault and rape, the limits of the law extend beyond the courtroom. Rather than simply influencing or guiding only those who are willing to consult the law in their efforts to seek justice, laws and legal discourse have the potential to frame and constrain any attempt to discuss experiences of sexual violence. #MeToo and other forms of &amp;ldquo;consciousness-raising&amp;rdquo; for sexual violence highlight the limiting effects of law and legal discourse on public discussion of sexual violence. We find that, paradoxically, in the case of sexual violence law has the capacity to undermine the goals and benefits of consciousness-raising approaches, privatizing the experience of sexual assault and silencing its victims.

]]>#MeToo? Legal Discourse and Everyday Responses to Sexual ViolenceAlison GashRyan Hardingdoi: 10.3390/laws7020021Laws2018-05-21Laws2018-05-2172Article2110.3390/laws7020021http://www.mdpi.com/2075-471X/7/2/21Laws, Vol. 7, Pages 20: Judicialization and Its Effects: Experiments as a Way Forwardhttp://www.mdpi.com/2075-471X/7/2/20
Law and courts play a larger role in American policymaking than in similar countries&amp;mdash;and a larger role than ever before in American politics. However, systematic efforts to evaluate the effects of judicialized policymaking are consistently plagued by problems of causal inference. Experiments offer a way forward. Causal claims by public law scholars are often undercut by validity difficulties that are avoidable if scholars engaging in observational research incorporate the tenets of experiments in their research designs, as well as if more public law scholars attempted to isolate the effects of judicialization in controlled settings, such as survey or laboratory experiments. An original survey experiment on the effects of media reporting on tort reform suggests that experiments have much to offer public law scholars. Despite certain challenges in implementation, experiments and observational research based on experiments provide a promising path for assessing the varied&amp;mdash;and important&amp;mdash;effects of judicialized policymaking.Laws, Vol. 7, Pages 20: Judicialization and Its Effects: Experiments as a Way Forward

Law and courts play a larger role in American policymaking than in similar countries&amp;mdash;and a larger role than ever before in American politics. However, systematic efforts to evaluate the effects of judicialized policymaking are consistently plagued by problems of causal inference. Experiments offer a way forward. Causal claims by public law scholars are often undercut by validity difficulties that are avoidable if scholars engaging in observational research incorporate the tenets of experiments in their research designs, as well as if more public law scholars attempted to isolate the effects of judicialization in controlled settings, such as survey or laboratory experiments. An original survey experiment on the effects of media reporting on tort reform suggests that experiments have much to offer public law scholars. Despite certain challenges in implementation, experiments and observational research based on experiments provide a promising path for assessing the varied&amp;mdash;and important&amp;mdash;effects of judicialized policymaking.

]]>Judicialization and Its Effects: Experiments as a Way ForwardParker Hevrondoi: 10.3390/laws7020020Laws2018-05-18Laws2018-05-1872Article2010.3390/laws7020020http://www.mdpi.com/2075-471X/7/2/20Laws, Vol. 7, Pages 19: All Their Eggs in One Basket? Ideological Congruence in Congress and the Bicameral Origins of Concentrated Delegation to the Bureaucracyhttp://www.mdpi.com/2075-471X/7/2/19
What drives congressional choices to concentrate implementation authority for legislative enactments among relatively few bureaucratic institutions? And are increased levels of concentration in implementation power associated with intercameral ideological proximity in Congress? I theorize that greater ideological congruity between the House and Senate drives increased levels of concentration in delegated implementation authority to federal agencies. By examining every significant legislative enactment from 1947 to 2012 that delegates implementation responsibility to at least one federal agency, I consider the legislative dynamics of decisions regarding the range of institutions charged with policy implementation in the American administrative state. I find that increased concentration of implementation authority is associated with greater ideological congruence between pivotal members of the House and the Senate. These results suggest that the preferences of key officials in Congress contribute to defining the breadth of bureaucratic implementation authority in the federal policy process.Laws, Vol. 7, Pages 19: All Their Eggs in One Basket? Ideological Congruence in Congress and the Bicameral Origins of Concentrated Delegation to the Bureaucracy

What drives congressional choices to concentrate implementation authority for legislative enactments among relatively few bureaucratic institutions? And are increased levels of concentration in implementation power associated with intercameral ideological proximity in Congress? I theorize that greater ideological congruity between the House and Senate drives increased levels of concentration in delegated implementation authority to federal agencies. By examining every significant legislative enactment from 1947 to 2012 that delegates implementation responsibility to at least one federal agency, I consider the legislative dynamics of decisions regarding the range of institutions charged with policy implementation in the American administrative state. I find that increased concentration of implementation authority is associated with greater ideological congruence between pivotal members of the House and the Senate. These results suggest that the preferences of key officials in Congress contribute to defining the breadth of bureaucratic implementation authority in the federal policy process.

]]>All Their Eggs in One Basket? Ideological Congruence in Congress and the Bicameral Origins of Concentrated Delegation to the BureaucracyJordan Carr Petersondoi: 10.3390/laws7020019Laws2018-05-12Laws2018-05-1272Article1910.3390/laws7020019http://www.mdpi.com/2075-471X/7/2/19Laws, Vol. 7, Pages 18: Justiciability of the Right to Water in the SADC Region: A Critical Appraisalhttp://www.mdpi.com/2075-471X/7/2/18
Weak justiciability of socio-economic rights almost circumscribes the trajectory of socio-economic development over time as individuals whose rights are violated cannot easily get a remedy through courts, which negatively affects the latter&amp;rsquo;s ability to meaningfully realize their development potential. The available literature on this issue is scant and disorganised and hence necessitating a critical appraisal. This review focuses on the justiciability of the right to water in the Southern Africa Development Community (SADC) focusing particularly on South Africa and Malawi. This is because socio-economic rights are clearly justiciable under South African law as opposed to the other SADC countries where national constitutions do not enshrine the right to water, and at best, the right to water can only be inferred from the right to life and to development. Deriving the right to water from other rights, and especially those that impose a negative obligation on the state, masks its importance and the likelihood that it can be justly adjudicated on. It is argued herein that for most of the other SADC countries to realize the right to water, the law should be crafted to expressly protect the right to water and this must be obvious in the respective constitutions, as well as other related water laws. This will enable courts to adjudicate disputes concerning water and possibly evolve jurisprudence that is responsive to the water needs of people according to their circumstances.Laws, Vol. 7, Pages 18: Justiciability of the Right to Water in the SADC Region: A Critical Appraisal

Weak justiciability of socio-economic rights almost circumscribes the trajectory of socio-economic development over time as individuals whose rights are violated cannot easily get a remedy through courts, which negatively affects the latter&amp;rsquo;s ability to meaningfully realize their development potential. The available literature on this issue is scant and disorganised and hence necessitating a critical appraisal. This review focuses on the justiciability of the right to water in the Southern Africa Development Community (SADC) focusing particularly on South Africa and Malawi. This is because socio-economic rights are clearly justiciable under South African law as opposed to the other SADC countries where national constitutions do not enshrine the right to water, and at best, the right to water can only be inferred from the right to life and to development. Deriving the right to water from other rights, and especially those that impose a negative obligation on the state, masks its importance and the likelihood that it can be justly adjudicated on. It is argued herein that for most of the other SADC countries to realize the right to water, the law should be crafted to expressly protect the right to water and this must be obvious in the respective constitutions, as well as other related water laws. This will enable courts to adjudicate disputes concerning water and possibly evolve jurisprudence that is responsive to the water needs of people according to their circumstances.

]]>Justiciability of the Right to Water in the SADC Region: A Critical AppraisalGreenwell MatchayaO’brien KaabaCharles Nhemachenadoi: 10.3390/laws7020018Laws2018-05-02Laws2018-05-0272Review1810.3390/laws7020018http://www.mdpi.com/2075-471X/7/2/18Laws, Vol. 7, Pages 17: Concerns about Genetic Discrimination after Regulation: A Qualitative Study of the Situation Regarding BRCA and Huntington’s Disease in Belgiumhttp://www.mdpi.com/2075-471X/7/2/17
Although there is no unequivocal evidence of genetic discrimination (GD), and despite laws that prohibit it, individuals confronted with genetic diseases still seem to be concerned. The aim of this study was to gain in-depth understanding of experiences and concerns in relation to possible genetic discrimination. This article presents an analysis of semi-structured interviews with 42 individuals who had or were at risk of breast and ovarian cancer (BRCA) or Huntington&amp;rsquo;s disease (HD) in Belgium. Even after regulation, individuals at risk of BRCA and HD express concerns about possible genetic discrimination. These concerns relate to direct forms of GD, for instance those related to insurance and employment. Individuals were often unclear about and wary of legislation. Importantly, concerns were also expressed as to more subtle and indirect forms of GD, e.g., in social relations, where individuals fear being treated &amp;lsquo;differently&amp;rsquo; and unfairly. Our study demonstrates how these concerns emerge at particular moments in life and how levels and forms of concern are influenced by the specific genetic disorder. Worries concerning these more subtle forms of genetic discrimination are more difficult to protect by law. Current legislative efforts do not appear to be effective in alleviating concerns about genetic discrimination. These regulations seem to be unclear, some participants are unsure about their effectiveness and they do not succeed in incorporating all forms of genetic discrimination. Particularly challenging is how to address indirect forms of genetic discrimination.Laws, Vol. 7, Pages 17: Concerns about Genetic Discrimination after Regulation: A Qualitative Study of the Situation Regarding BRCA and Huntington’s Disease in Belgium

Although there is no unequivocal evidence of genetic discrimination (GD), and despite laws that prohibit it, individuals confronted with genetic diseases still seem to be concerned. The aim of this study was to gain in-depth understanding of experiences and concerns in relation to possible genetic discrimination. This article presents an analysis of semi-structured interviews with 42 individuals who had or were at risk of breast and ovarian cancer (BRCA) or Huntington&amp;rsquo;s disease (HD) in Belgium. Even after regulation, individuals at risk of BRCA and HD express concerns about possible genetic discrimination. These concerns relate to direct forms of GD, for instance those related to insurance and employment. Individuals were often unclear about and wary of legislation. Importantly, concerns were also expressed as to more subtle and indirect forms of GD, e.g., in social relations, where individuals fear being treated &amp;lsquo;differently&amp;rsquo; and unfairly. Our study demonstrates how these concerns emerge at particular moments in life and how levels and forms of concern are influenced by the specific genetic disorder. Worries concerning these more subtle forms of genetic discrimination are more difficult to protect by law. Current legislative efforts do not appear to be effective in alleviating concerns about genetic discrimination. These regulations seem to be unclear, some participants are unsure about their effectiveness and they do not succeed in incorporating all forms of genetic discrimination. Particularly challenging is how to address indirect forms of genetic discrimination.

]]>Concerns about Genetic Discrimination after Regulation: A Qualitative Study of the Situation Regarding BRCA and Huntington’s Disease in BelgiumAnnet WautersIne Van Hoyweghendoi: 10.3390/laws7020017Laws2018-04-26Laws2018-04-2672Article1710.3390/laws7020017http://www.mdpi.com/2075-471X/7/2/17Laws, Vol. 7, Pages 16: Off to the Courts? Or the Agency? Public Attitudes on Bureaucratic and Legal Approaches to Policy Enforcementhttp://www.mdpi.com/2075-471X/7/2/16
A key curiosity in the operation of the American regulatory state lies with its hybrid structure, defined by centralized, bureaucratic approaches but also more decentralized actions such as lawsuits brought by private citizens in the courts. While current research on these two pathways focuses at the elite level&amp;mdash;exploring how and why political actors and institutions opt for legal or administrative strategies for implementing different public policies&amp;mdash;there is little research that examines public attitudes toward how policy is enforced in the U.S. Given that the public is a key partner in this process, this paper integrates public attitudes into the discussion, tapping into conceptions of &amp;ldquo;big government,&amp;rdquo; privatization, and the tort reform movement. Using original data from a series of vignette-based experiments included in the 2014 Cooperative Congressional Election Survey, we examine public preferences about how policy is regulated&amp;mdash;by private citizens in the courts or by government officials in agencies&amp;mdash;across a broad number of policy areas. We offer one of the first studies that adjudicates the boundaries of public attitudes on litigation and bureaucratic regulation in the U.S., offering implications for how elites might approach the design of policy implementation for different issue areas.Laws, Vol. 7, Pages 16: Off to the Courts? Or the Agency? Public Attitudes on Bureaucratic and Legal Approaches to Policy Enforcement

A key curiosity in the operation of the American regulatory state lies with its hybrid structure, defined by centralized, bureaucratic approaches but also more decentralized actions such as lawsuits brought by private citizens in the courts. While current research on these two pathways focuses at the elite level&amp;mdash;exploring how and why political actors and institutions opt for legal or administrative strategies for implementing different public policies&amp;mdash;there is little research that examines public attitudes toward how policy is enforced in the U.S. Given that the public is a key partner in this process, this paper integrates public attitudes into the discussion, tapping into conceptions of &amp;ldquo;big government,&amp;rdquo; privatization, and the tort reform movement. Using original data from a series of vignette-based experiments included in the 2014 Cooperative Congressional Election Survey, we examine public preferences about how policy is regulated&amp;mdash;by private citizens in the courts or by government officials in agencies&amp;mdash;across a broad number of policy areas. We offer one of the first studies that adjudicates the boundaries of public attitudes on litigation and bureaucratic regulation in the U.S., offering implications for how elites might approach the design of policy implementation for different issue areas.

]]>Off to the Courts? Or the Agency? Public Attitudes on Bureaucratic and Legal Approaches to Policy EnforcementQuinn MulroyShana Gadariandoi: 10.3390/laws7020016Laws2018-04-24Laws2018-04-2472Article1610.3390/laws7020016http://www.mdpi.com/2075-471X/7/2/16Laws, Vol. 7, Pages 15: The Administrative Role of the Chief Justice: Law, Politics, and Procedure in the Roberts Court Erahttp://www.mdpi.com/2075-471X/7/2/15
The Chief Justice of the Supreme Court plays a critical role in shaping national politics and public policy. While political scientists tend to focus on the ways in which the chief affects the Court&amp;rsquo;s jurisprudence, relatively little attention has been devoted to the unique administrative aspects of the position that allow for strategic influence over political and legal outcomes. This article examines the role of the chief justice as the head of the Judicial Conference, which is the primary policy making body for federal courts in the United States. Specifically, I examine the degree to which Chief Justice Roberts has appointed members to the Conference&amp;rsquo;s rulemaking committees with a long-standing conservative legal goal in mind: constricting access to courts. By focusing on the 2015 amendments to the Federal Rules of Civil Procedure in particular, I show that Chief Justice Roberts&amp;rsquo; sole discretion to appoint members to these committees constitutes a &amp;ldquo;purely procedural&amp;rdquo; role through which he has exercised extensive political power, blurring the line between &amp;ldquo;law&amp;rdquo; and &amp;ldquo;politics&amp;rdquo; to great effect.Laws, Vol. 7, Pages 15: The Administrative Role of the Chief Justice: Law, Politics, and Procedure in the Roberts Court Era

The Chief Justice of the Supreme Court plays a critical role in shaping national politics and public policy. While political scientists tend to focus on the ways in which the chief affects the Court&amp;rsquo;s jurisprudence, relatively little attention has been devoted to the unique administrative aspects of the position that allow for strategic influence over political and legal outcomes. This article examines the role of the chief justice as the head of the Judicial Conference, which is the primary policy making body for federal courts in the United States. Specifically, I examine the degree to which Chief Justice Roberts has appointed members to the Conference&amp;rsquo;s rulemaking committees with a long-standing conservative legal goal in mind: constricting access to courts. By focusing on the 2015 amendments to the Federal Rules of Civil Procedure in particular, I show that Chief Justice Roberts&amp;rsquo; sole discretion to appoint members to these committees constitutes a &amp;ldquo;purely procedural&amp;rdquo; role through which he has exercised extensive political power, blurring the line between &amp;ldquo;law&amp;rdquo; and &amp;ldquo;politics&amp;rdquo; to great effect.

]]>The Administrative Role of the Chief Justice: Law, Politics, and Procedure in the Roberts Court EraSarah Staszakdoi: 10.3390/laws7020015Laws2018-04-17Laws2018-04-1772Article1510.3390/laws7020015http://www.mdpi.com/2075-471X/7/2/15Laws, Vol. 7, Pages 14: Assessing Judicial Empowermenthttp://www.mdpi.com/2075-471X/7/2/14
Drawing on an ongoing international data collection effort, this paper examines the free expression jurisprudence of the Supreme Court of Canada and the European Court of Human Rights in an effort to assess the political beneficiaries of judicial empowerment. Free expression is a universally recognized fundamental right, and it is a right that is regularly invoked in court by a rich diversity of political actors. As such, free speech law provides an illuminating window onto how constitutional courts respond to similar claims from differently situated claimants. This paper compares the response by two influential courts to free expression claims filed by for-profit businesses and by labor advocates.Laws, Vol. 7, Pages 14: Assessing Judicial Empowerment

Drawing on an ongoing international data collection effort, this paper examines the free expression jurisprudence of the Supreme Court of Canada and the European Court of Human Rights in an effort to assess the political beneficiaries of judicial empowerment. Free expression is a universally recognized fundamental right, and it is a right that is regularly invoked in court by a rich diversity of political actors. As such, free speech law provides an illuminating window onto how constitutional courts respond to similar claims from differently situated claimants. This paper compares the response by two influential courts to free expression claims filed by for-profit businesses and by labor advocates.

]]>Assessing Judicial EmpowermentThomas M. Keckdoi: 10.3390/laws7020014Laws2018-04-16Laws2018-04-1672Article1410.3390/laws7020014http://www.mdpi.com/2075-471X/7/2/14Laws, Vol. 7, Pages 13: Why Insurers Are Wrong about Adverse Selectionhttp://www.mdpi.com/2075-471X/7/2/13
Insurers typically argue that regulatory limits on their ability to use genetic tests will induce ‘adverse selection’; they say that this has disadvantages not just for insurers, but also for society as a whole. I argue that, even on its own terms, this argument is often flawed. From the viewpoint of society as a whole, not all adverse selection is adverse. Limits on genetic discrimination that induce the right amount of adverse selection (but not too much adverse selection) can increase ‘loss coverage’, and so make insurance work better for society as a whole.Laws, Vol. 7, Pages 13: Why Insurers Are Wrong about Adverse Selection

Insurers typically argue that regulatory limits on their ability to use genetic tests will induce ‘adverse selection’; they say that this has disadvantages not just for insurers, but also for society as a whole. I argue that, even on its own terms, this argument is often flawed. From the viewpoint of society as a whole, not all adverse selection is adverse. Limits on genetic discrimination that induce the right amount of adverse selection (but not too much adverse selection) can increase ‘loss coverage’, and so make insurance work better for society as a whole.

]]>Why Insurers Are Wrong about Adverse SelectionR. Guy Thomasdoi: 10.3390/laws7020013Laws2018-04-15Laws2018-04-1572Article1310.3390/laws7020013http://www.mdpi.com/2075-471X/7/2/13Laws, Vol. 7, Pages 12: Decision-Making Behaviour under the Mental Health Act 1983 and Its Impact on Mental Health Tribunals: An English Perspectivehttp://www.mdpi.com/2075-471X/7/2/12
In England and Wales, the Mental Health Act 1983 (MHA 1983) provides the legal framework which governs decisions made concerning the care and treatment of those suffering from mental disorders, where they may pose a risk to themselves or others. The perspective of the patient and the care provider may conflict and can be a source of tension and challenge within mental health law. Through access to a mental health tribunal, patients are offered the apparatus to review and challenge their detention. With detention rates under the mental health legislation rising exponentially, this is having a knock-on effect upon tribunal application numbers. As there is a legal requirement to review all cases of individuals detained under the MHA 1983, understanding the key drivers for this increase in detention is essential in order to understand how to better manage both detention rates and the upsurge in tribunal caseloads. With the increase in overall activity, mental health tribunal workloads present significant practical challenges and has downstream cost implications.Laws, Vol. 7, Pages 12: Decision-Making Behaviour under the Mental Health Act 1983 and Its Impact on Mental Health Tribunals: An English Perspective

In England and Wales, the Mental Health Act 1983 (MHA 1983) provides the legal framework which governs decisions made concerning the care and treatment of those suffering from mental disorders, where they may pose a risk to themselves or others. The perspective of the patient and the care provider may conflict and can be a source of tension and challenge within mental health law. Through access to a mental health tribunal, patients are offered the apparatus to review and challenge their detention. With detention rates under the mental health legislation rising exponentially, this is having a knock-on effect upon tribunal application numbers. As there is a legal requirement to review all cases of individuals detained under the MHA 1983, understanding the key drivers for this increase in detention is essential in order to understand how to better manage both detention rates and the upsurge in tribunal caseloads. With the increase in overall activity, mental health tribunal workloads present significant practical challenges and has downstream cost implications.

]]>Decision-Making Behaviour under the Mental Health Act 1983 and Its Impact on Mental Health Tribunals: An English PerspectiveNicola Glover-Thomasdoi: 10.3390/laws7020012Laws2018-03-24Laws2018-03-2472Article1210.3390/laws7020012http://www.mdpi.com/2075-471X/7/2/12Laws, Vol. 7, Pages 11: Expanding the Rights of Student Religious Groups on College and University Campuses: The Implications of Trinity Lutheran Church v. Comerhttp://www.mdpi.com/2075-471X/7/1/11
In Trinity Lutheran Church v. Comer, the U.S. Supreme Court established a new constitutional rule. While the exact breadth of the rule remains in doubt, the new jurisprudential principle appears to be as follows—except where such actions would violate the Establishment Clause, the Free Exercise Clause prohibits constitutional actors from conferring or denying benefits solely because of individuals’ or entities’ religious exercises. As discussed in this article, this rule has immediate, long-term ramifications for constitutional jurisprudence, particularly as applied to religious freedom. In light of the potential changes it may engender, the purpose of this three-part article is to provide an overview of Trinity Lutheran and its expansion of rights for student religious groups on the campuses of public college and universities.Laws, Vol. 7, Pages 11: Expanding the Rights of Student Religious Groups on College and University Campuses: The Implications of Trinity Lutheran Church v. Comer

In Trinity Lutheran Church v. Comer, the U.S. Supreme Court established a new constitutional rule. While the exact breadth of the rule remains in doubt, the new jurisprudential principle appears to be as follows—except where such actions would violate the Establishment Clause, the Free Exercise Clause prohibits constitutional actors from conferring or denying benefits solely because of individuals’ or entities’ religious exercises. As discussed in this article, this rule has immediate, long-term ramifications for constitutional jurisprudence, particularly as applied to religious freedom. In light of the potential changes it may engender, the purpose of this three-part article is to provide an overview of Trinity Lutheran and its expansion of rights for student religious groups on the campuses of public college and universities.

]]>Expanding the Rights of Student Religious Groups on College and University Campuses: The Implications of Trinity Lutheran Church v. ComerWilliam ThroCharles Russodoi: 10.3390/laws7010011Laws2018-03-16Laws2018-03-1671Article1110.3390/laws7010011http://www.mdpi.com/2075-471X/7/1/11Laws, Vol. 7, Pages 10: Models of Disability and Human Rights: Informing the Improvement of Built Environment Accessibility for People with Disability at Neighborhood Scale?http://www.mdpi.com/2075-471X/7/1/10
In the 21st century, even with the advent of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), the existing built environment still fails the neighborhood accessibility needs of people with disability. People with disabilities’ human right to the neighborhood is, at face value, enshrined in legislation and ‘much’ built environment accessibility legislation is in place. But, built environment accessibility practice has been, and continues to be, shaped by a hidden discourse based on theoretical underpinnings little understood by built environment practitioners. Similarly, built environment practitioners have little understanding of either the diversity of the human condition or the accessibility needs of people with disability. In Australia, the operationalization of built environment accessibility rights is, via opaque legislation, not necessarily reflective of the lived experience of people with disability, and weak in terms of built environment spatial coverage. Empirically, little is known about the extent of built environment inaccessibility, particularly neighborhood inaccessibility. Therefore, the question explored in this paper is: How might an understanding of models of disability and human rights inform the improvement of built environment accessibility, for people with disability, at a neighborhood scale? Literature related to disability and human rights theory, built environment accessibility legislation primarily using Australia as an example, and built environment accessibility assessment is drawn together. This paper argues that built environment practitioners must recognize the disabling potency of current built environment practice, that built environment practitioners need to engage directly with people with disability to improve understanding of accessibility needs, and that improved measure, at neighborhood scale, of the extent of existing built environment inaccessibility is required.Laws, Vol. 7, Pages 10: Models of Disability and Human Rights: Informing the Improvement of Built Environment Accessibility for People with Disability at Neighborhood Scale?

In the 21st century, even with the advent of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), the existing built environment still fails the neighborhood accessibility needs of people with disability. People with disabilities’ human right to the neighborhood is, at face value, enshrined in legislation and ‘much’ built environment accessibility legislation is in place. But, built environment accessibility practice has been, and continues to be, shaped by a hidden discourse based on theoretical underpinnings little understood by built environment practitioners. Similarly, built environment practitioners have little understanding of either the diversity of the human condition or the accessibility needs of people with disability. In Australia, the operationalization of built environment accessibility rights is, via opaque legislation, not necessarily reflective of the lived experience of people with disability, and weak in terms of built environment spatial coverage. Empirically, little is known about the extent of built environment inaccessibility, particularly neighborhood inaccessibility. Therefore, the question explored in this paper is: How might an understanding of models of disability and human rights inform the improvement of built environment accessibility, for people with disability, at a neighborhood scale? Literature related to disability and human rights theory, built environment accessibility legislation primarily using Australia as an example, and built environment accessibility assessment is drawn together. This paper argues that built environment practitioners must recognize the disabling potency of current built environment practice, that built environment practitioners need to engage directly with people with disability to improve understanding of accessibility needs, and that improved measure, at neighborhood scale, of the extent of existing built environment inaccessibility is required.

]]>Models of Disability and Human Rights: Informing the Improvement of Built Environment Accessibility for People with Disability at Neighborhood Scale?Mary Ann Jacksondoi: 10.3390/laws7010010Laws2018-03-08Laws2018-03-0871Article1010.3390/laws7010010http://www.mdpi.com/2075-471X/7/1/10Laws, Vol. 7, Pages 9: Customizing Fair Use Transplantshttp://www.mdpi.com/2075-471X/7/1/9
In the past decade, policymakers and commentators across the world have called for the introduction of copyright reform based on the fair use model in the United States. Thus far, Israel, Liberia, Malaysia, the Philippines, Singapore, South Korea, Sri Lanka and Taiwan have adopted the fair use regime or its close variants. Other jurisdictions such as Australia, Hong Kong and Ireland have also advanced proposals to facilitate such adoption. This article examines the increasing efforts to transplant fair use into the copyright system based on the U.S. model. It begins by briefly recapturing the strengths and weaknesses of legal transplants. The article then scrutinizes the ongoing effort to transplant fair use from the United States. Specifically, it identifies eight modalities of transplantation. This article concludes with five lessons that can be drawn from studying the ongoing transplant efforts.Laws, Vol. 7, Pages 9: Customizing Fair Use Transplants

In the past decade, policymakers and commentators across the world have called for the introduction of copyright reform based on the fair use model in the United States. Thus far, Israel, Liberia, Malaysia, the Philippines, Singapore, South Korea, Sri Lanka and Taiwan have adopted the fair use regime or its close variants. Other jurisdictions such as Australia, Hong Kong and Ireland have also advanced proposals to facilitate such adoption. This article examines the increasing efforts to transplant fair use into the copyright system based on the U.S. model. It begins by briefly recapturing the strengths and weaknesses of legal transplants. The article then scrutinizes the ongoing effort to transplant fair use from the United States. Specifically, it identifies eight modalities of transplantation. This article concludes with five lessons that can be drawn from studying the ongoing transplant efforts.

]]>Customizing Fair Use TransplantsPeter Yudoi: 10.3390/laws7010009Laws2018-02-26Laws2018-02-2671Article910.3390/laws7010009http://www.mdpi.com/2075-471X/7/1/9Laws, Vol. 7, Pages 8: Living on the Global Peripheries of Law: Disability Human Rights Law in Principle and in Practice in the Global Southhttp://www.mdpi.com/2075-471X/7/1/8
This article develops the notion that poorer nations of the Global South are particularly disadvantaged in terms of realizing disabled people's human rights in practice. This is because they are situated in what is termed the global peripheries of law. These are peripheries in which very limited human and financial resources are available to practically realize disability human rights (reflecting processes such as the outmigration of trained professionals, devaluation of currency as a condition of debt repayment, and dependence on agricultural exports and imports of expensive manufactured goods, including medicine, from the Global North). Being on the global peripheries of law also reflects legacies of colonial and neo-colonial violence and oppression in an unequal global capitalist order, such as ongoing and widespread violence against women and unsafe working conditions—both of which result in death and the geographically uneven production of impairment. This uneven production of impairment also needs to be considered as an important part of understanding disability human rights law in a global context. Following a brief overview of the U.N. convention on the human rights of disabled people and the U.N. Covenant on Economic, Social and Cultural Rights to provide a global legal context and of the Inter-American Human Rights System to provide a regional legal context, the article illustrates why it is so difficult to realize disabled people's human rights in practice in the Global South, through a case study of Guyana.Laws, Vol. 7, Pages 8: Living on the Global Peripheries of Law: Disability Human Rights Law in Principle and in Practice in the Global South

This article develops the notion that poorer nations of the Global South are particularly disadvantaged in terms of realizing disabled people's human rights in practice. This is because they are situated in what is termed the global peripheries of law. These are peripheries in which very limited human and financial resources are available to practically realize disability human rights (reflecting processes such as the outmigration of trained professionals, devaluation of currency as a condition of debt repayment, and dependence on agricultural exports and imports of expensive manufactured goods, including medicine, from the Global North). Being on the global peripheries of law also reflects legacies of colonial and neo-colonial violence and oppression in an unequal global capitalist order, such as ongoing and widespread violence against women and unsafe working conditions—both of which result in death and the geographically uneven production of impairment. This uneven production of impairment also needs to be considered as an important part of understanding disability human rights law in a global context. Following a brief overview of the U.N. convention on the human rights of disabled people and the U.N. Covenant on Economic, Social and Cultural Rights to provide a global legal context and of the Inter-American Human Rights System to provide a regional legal context, the article illustrates why it is so difficult to realize disabled people's human rights in practice in the Global South, through a case study of Guyana.

]]>Living on the Global Peripheries of Law: Disability Human Rights Law in Principle and in Practice in the Global SouthVera Chouinarddoi: 10.3390/laws7010008Laws2018-02-20Laws2018-02-2071Article810.3390/laws7010008http://www.mdpi.com/2075-471X/7/1/8Laws, Vol. 7, Pages 7: Indigenous Australians, Intellectual Disability and Incarceration: A Confluence of Rights Violationshttp://www.mdpi.com/2075-471X/7/1/7
Abstract: This article reviews the health and wellbeing of Aboriginal and Torres Strait Islander Australians with intellectual disability in the Australian prison system through a human rights lens. There is an information gap on this group of Australian prisoners in the health and disability literature and the multi-disciplinary criminal law and human rights law literature. This article will consider the context of Indigenous imprisonment in Australia and examine the status of prisoner health in that country, as well as the status of the health and wellbeing of prisoners with intellectual disability. It will then specifically explore the health, wellbeing and impact of imprisonment on Indigenous Australians with intellectual disability, and highlight how intersectional rights deficits (including health and human rights deficits) causally impact the ability of Indigenous Australians with intellectual disability to access due process, equal recognition and justice in the criminal justice and prison system. A central barrier to improving intersectional and discriminatory landscapes relating to health, human rights and justice for Indigenous Australian inmates with intellectual disability, and prisoners with intellectual disability more broadly in the Australian context, is the lack of sufficient governance and accountability mechanisms (including Indigenous-led mechanisms) to enforce the operationalisation of consistent, transparent, culturally responsive, rights-based remedies.Laws, Vol. 7, Pages 7: Indigenous Australians, Intellectual Disability and Incarceration: A Confluence of Rights Violations

Abstract: This article reviews the health and wellbeing of Aboriginal and Torres Strait Islander Australians with intellectual disability in the Australian prison system through a human rights lens. There is an information gap on this group of Australian prisoners in the health and disability literature and the multi-disciplinary criminal law and human rights law literature. This article will consider the context of Indigenous imprisonment in Australia and examine the status of prisoner health in that country, as well as the status of the health and wellbeing of prisoners with intellectual disability. It will then specifically explore the health, wellbeing and impact of imprisonment on Indigenous Australians with intellectual disability, and highlight how intersectional rights deficits (including health and human rights deficits) causally impact the ability of Indigenous Australians with intellectual disability to access due process, equal recognition and justice in the criminal justice and prison system. A central barrier to improving intersectional and discriminatory landscapes relating to health, human rights and justice for Indigenous Australian inmates with intellectual disability, and prisoners with intellectual disability more broadly in the Australian context, is the lack of sufficient governance and accountability mechanisms (including Indigenous-led mechanisms) to enforce the operationalisation of consistent, transparent, culturally responsive, rights-based remedies.

]]>Indigenous Australians, Intellectual Disability and Incarceration: A Confluence of Rights ViolationsClaire E. BrolanDavid Harleydoi: 10.3390/laws7010007Laws2018-02-12Laws2018-02-1271Review710.3390/laws7010007http://www.mdpi.com/2075-471X/7/1/7Laws, Vol. 7, Pages 6: Reconsidering Sheltered Workshops in Light of the United Nations Convention on the Rights of Persons with Disabilities (2006)http://www.mdpi.com/2075-471X/7/1/6
Sheltered work and related practices remain a prevalent service for people with intellectual disabilities. However, as a result of being placed in these, participants overwhelmingly remain segregated and excluded from their wider communities. This paper explores whether, with the advent of the United Nations Convention on the Rights of Persons with Disabilities, we can at least begin to assess the equality implications of such placements and argue that the experience of segregation itself represents numerous rights violations and discrimination. Having considered traditional equality mechanisms and their bearing on people with intellectual disabilities, this discussion explores how far the Convention’s re-envisioning of the basic principles of equality can perhaps provide a more promising outlook and ideological stance. Indeed, during the Convention’s inception, the negotiations circled around the conflicting opinions as to the purpose, usefulness, and future of sheltered work, revealing the existing tensions between protection and autonomy, shrouding all disability policy discussions. As a result, the question of sheltered work is not explicitly addressed in the treaty and the Committee on the Rights of Persons with Disabilities have been unable to definitively declare that the practice of sheltered work constitutes an act of discrimination. However, the Committee does as times demand that sheltered workshops be phased out where it is obvious that the practice of sheltered work is directly linked to the exploitation of workers. Moreover, certain provisions in the Convention might help in determining wrongful discrimination in some, if limited, instances.Laws, Vol. 7, Pages 6: Reconsidering Sheltered Workshops in Light of the United Nations Convention on the Rights of Persons with Disabilities (2006)

Sheltered work and related practices remain a prevalent service for people with intellectual disabilities. However, as a result of being placed in these, participants overwhelmingly remain segregated and excluded from their wider communities. This paper explores whether, with the advent of the United Nations Convention on the Rights of Persons with Disabilities, we can at least begin to assess the equality implications of such placements and argue that the experience of segregation itself represents numerous rights violations and discrimination. Having considered traditional equality mechanisms and their bearing on people with intellectual disabilities, this discussion explores how far the Convention’s re-envisioning of the basic principles of equality can perhaps provide a more promising outlook and ideological stance. Indeed, during the Convention’s inception, the negotiations circled around the conflicting opinions as to the purpose, usefulness, and future of sheltered work, revealing the existing tensions between protection and autonomy, shrouding all disability policy discussions. As a result, the question of sheltered work is not explicitly addressed in the treaty and the Committee on the Rights of Persons with Disabilities have been unable to definitively declare that the practice of sheltered work constitutes an act of discrimination. However, the Committee does as times demand that sheltered workshops be phased out where it is obvious that the practice of sheltered work is directly linked to the exploitation of workers. Moreover, certain provisions in the Convention might help in determining wrongful discrimination in some, if limited, instances.

]]>Reconsidering Sheltered Workshops in Light of the United Nations Convention on the Rights of Persons with Disabilities (2006)Charlotte May-Simeradoi: 10.3390/laws7010006Laws2018-02-05Laws2018-02-0571Article610.3390/laws7010006http://www.mdpi.com/2075-471X/7/1/6Laws, Vol. 7, Pages 5: Acknowledgement to Reviewers of Laws in 2017http://www.mdpi.com/2075-471X/7/1/5
Peer review is an essential part in the publication process, ensuring that Laws maintains high quality standards for its published papers.[...]Laws, Vol. 7, Pages 5: Acknowledgement to Reviewers of Laws in 2017

Peer review is an essential part in the publication process, ensuring that Laws maintains high quality standards for its published papers.[...]

]]>Acknowledgement to Reviewers of Laws in 2017 Laws Editorial Officedoi: 10.3390/laws7010005Laws2018-01-29Laws2018-01-2971Editorial510.3390/laws7010005http://www.mdpi.com/2075-471X/7/1/5Laws, Vol. 7, Pages 4: China and BEPShttp://www.mdpi.com/2075-471X/7/1/4
This article provides an overview of China’s reaction to the G20/OECD Base Erosion and Profit Shifting (BEPS) project. From 2013 to 2015, the OECD developed a series of actions designed to address BEPS activities by multinational enterprises, culminating in a final report of 15 action steps. The article reviews and explains China’s reaction to the BEPS project and its actions in detail, with a particular focus on transfer pricing issues. It shows that China has actively participated in both developing and implementing the BEPS project. The article further suggests that in the post-BEPS era, China is expected to implement the BEPS project in a more consistent and coherent way, and will take whatever measures necessary to guarantee the successful implementation of the BEPS package in collaboration with the global community.Laws, Vol. 7, Pages 4: China and BEPS

This article provides an overview of China’s reaction to the G20/OECD Base Erosion and Profit Shifting (BEPS) project. From 2013 to 2015, the OECD developed a series of actions designed to address BEPS activities by multinational enterprises, culminating in a final report of 15 action steps. The article reviews and explains China’s reaction to the BEPS project and its actions in detail, with a particular focus on transfer pricing issues. It shows that China has actively participated in both developing and implementing the BEPS project. The article further suggests that in the post-BEPS era, China is expected to implement the BEPS project in a more consistent and coherent way, and will take whatever measures necessary to guarantee the successful implementation of the BEPS package in collaboration with the global community.

]]>China and BEPSReuven Avi-YonahHaiyan Xudoi: 10.3390/laws7010004Laws2018-01-24Laws2018-01-2471Article410.3390/laws7010004http://www.mdpi.com/2075-471X/7/1/4Laws, Vol. 7, Pages 3: Freedom of Opinion and Expression: From the Perspective of Psychosocial Disability and Madnesshttp://www.mdpi.com/2075-471X/7/1/3
This article argues that civil mental health laws operate to constrict how people think, understand, and speak about psychosocial disability, madness, and mental distress. It does so with reference to views and experiences of mental health service users and psychiatric survivors (users and survivors) and their/our accounts of disability, madness, and distress, such as those articulated by the emerging field of Mad studies. The analysis considers the application of the rights to freedom of opinion and expression that are enshrined in the International Covenant on Civil and Political Rights and other international human rights instruments to the mental health context. The article explores the suppression of freedom of opinion and expression that is effected through the symbolic violence of psychiatry and the mental health paradigm. Focusing on Australian legal frameworks, the article discusses how the material violence and coercion characterising mental health laws compound this process. It is further argued that civil mental health laws, by codifying the tenets of psychiatry and the mental health paradigm so as to render them largely unassailable, validate the ontological nullification of users and survivors. The foregoing analysis exposes dangers of adopting a functional test of mental capacity as the pre-eminent legal standard for authorising involuntary mental health interventions. It is suggested that considering freedom of opinion and expression from the perspective of psychosocial disability and madness reinforces the Committee on the Rights of Persons with Disabilities’ interpretation that such interventions are incompatible with international human rights standards.Laws, Vol. 7, Pages 3: Freedom of Opinion and Expression: From the Perspective of Psychosocial Disability and Madness

This article argues that civil mental health laws operate to constrict how people think, understand, and speak about psychosocial disability, madness, and mental distress. It does so with reference to views and experiences of mental health service users and psychiatric survivors (users and survivors) and their/our accounts of disability, madness, and distress, such as those articulated by the emerging field of Mad studies. The analysis considers the application of the rights to freedom of opinion and expression that are enshrined in the International Covenant on Civil and Political Rights and other international human rights instruments to the mental health context. The article explores the suppression of freedom of opinion and expression that is effected through the symbolic violence of psychiatry and the mental health paradigm. Focusing on Australian legal frameworks, the article discusses how the material violence and coercion characterising mental health laws compound this process. It is further argued that civil mental health laws, by codifying the tenets of psychiatry and the mental health paradigm so as to render them largely unassailable, validate the ontological nullification of users and survivors. The foregoing analysis exposes dangers of adopting a functional test of mental capacity as the pre-eminent legal standard for authorising involuntary mental health interventions. It is suggested that considering freedom of opinion and expression from the perspective of psychosocial disability and madness reinforces the Committee on the Rights of Persons with Disabilities’ interpretation that such interventions are incompatible with international human rights standards.

]]>Freedom of Opinion and Expression: From the Perspective of Psychosocial Disability and MadnessFleur Beaupertdoi: 10.3390/laws7010003Laws2018-01-04Laws2018-01-0471Article310.3390/laws7010003http://www.mdpi.com/2075-471X/7/1/3Laws, Vol. 7, Pages 2: Reform of the Belgian Justice System: Changes to the Role of Jurisdiction Chief, the Empowerment of Local Managershttp://www.mdpi.com/2075-471X/7/1/2
The last waves of reform that affected, and continue to affect, the Belgian legal system led to an injunction for increased responsibility on the part of local managers, the jurisdiction chiefs. This tendency was initiated in the 1990s, with the introduction of a managerial logic into the legal sphere, whereby local initiatives took precedence in the absence of any clear and binding direction. The 2014 reform project, through its three constituent pillars, led to the strengthening of this logic, to the point where it became an important subject. The jurisdiction chiefs were therefore confronted with a new type of responsibility in that they became responsible for the dissemination of managerial discourse within their local body, for the implementation of change, and, consequently, for the success of this change, while at the same time, being confronted by a state and by political authorities that preferred to take a back-seat role. By observing, from an exploratory perspective, the developments caused by this transformational dynamic with regard to the role and function of the jurisdiction chiefs, our contribution highlights the wide range of receptions and appropriations of the reform project, and the concepts supporting the founding trio of pillars, based on five emerging, empirically-established subjects.Laws, Vol. 7, Pages 2: Reform of the Belgian Justice System: Changes to the Role of Jurisdiction Chief, the Empowerment of Local Managers

The last waves of reform that affected, and continue to affect, the Belgian legal system led to an injunction for increased responsibility on the part of local managers, the jurisdiction chiefs. This tendency was initiated in the 1990s, with the introduction of a managerial logic into the legal sphere, whereby local initiatives took precedence in the absence of any clear and binding direction. The 2014 reform project, through its three constituent pillars, led to the strengthening of this logic, to the point where it became an important subject. The jurisdiction chiefs were therefore confronted with a new type of responsibility in that they became responsible for the dissemination of managerial discourse within their local body, for the implementation of change, and, consequently, for the success of this change, while at the same time, being confronted by a state and by political authorities that preferred to take a back-seat role. By observing, from an exploratory perspective, the developments caused by this transformational dynamic with regard to the role and function of the jurisdiction chiefs, our contribution highlights the wide range of receptions and appropriations of the reform project, and the concepts supporting the founding trio of pillars, based on five emerging, empirically-established subjects.

]]>Reform of the Belgian Justice System: Changes to the Role of Jurisdiction Chief, the Empowerment of Local ManagersEmilie DupontFrédéric Schoenaersdoi: 10.3390/laws7010002Laws2017-12-28Laws2017-12-2871Article210.3390/laws7010002http://www.mdpi.com/2075-471X/7/1/2Laws, Vol. 7, Pages 1: Unveiling the Challenges in the Implementation of Article 24 CRPD on the Right to Inclusive Education. A Case-Study from Italyhttp://www.mdpi.com/2075-471X/7/1/1
Since the 1970s, Italy has undertaken a process of inclusion of children with disabilities in mainstream schools, has implemented an anti-discriminatory educational policy, and abandoned segregated educational practices. In September 2014, the Italian Government initiated a process of “modernization” of the whole educational system, and attempted to fully align domestic legislation with the wide-ranging obligations enshrined in Article 24 CRPD. Law No. 107/2015 on the reform of the educational system empowered the Government to adopt legislative decrees to promote inter alia an effective and inclusive education for persons with disabilities. After a long and somewhat troubled process, a legislative decree on inclusive education was finally adopted in April 2017. This article, building upon previous research, critically discusses the innovations brought by this recent reform, situating them in the broader Italian legislative framework on the rights of people with disabilities. By focusing on Italy as a case-study, this article aims to reflect on the challenges surrounding the creation of an inclusionary educational system that goes beyond a mere integration in mainstream schools and ensures full and effective participation of all learners, meeting the standards imposed by Article 24 CRPD.Laws, Vol. 7, Pages 1: Unveiling the Challenges in the Implementation of Article 24 CRPD on the Right to Inclusive Education. A Case-Study from Italy

Since the 1970s, Italy has undertaken a process of inclusion of children with disabilities in mainstream schools, has implemented an anti-discriminatory educational policy, and abandoned segregated educational practices. In September 2014, the Italian Government initiated a process of “modernization” of the whole educational system, and attempted to fully align domestic legislation with the wide-ranging obligations enshrined in Article 24 CRPD. Law No. 107/2015 on the reform of the educational system empowered the Government to adopt legislative decrees to promote inter alia an effective and inclusive education for persons with disabilities. After a long and somewhat troubled process, a legislative decree on inclusive education was finally adopted in April 2017. This article, building upon previous research, critically discusses the innovations brought by this recent reform, situating them in the broader Italian legislative framework on the rights of people with disabilities. By focusing on Italy as a case-study, this article aims to reflect on the challenges surrounding the creation of an inclusionary educational system that goes beyond a mere integration in mainstream schools and ensures full and effective participation of all learners, meeting the standards imposed by Article 24 CRPD.

]]>Unveiling the Challenges in the Implementation of Article 24 CRPD on the Right to Inclusive Education. A Case-Study from ItalyDelia Ferridoi: 10.3390/laws7010001Laws2017-12-25Laws2017-12-2571Article110.3390/laws7010001http://www.mdpi.com/2075-471X/7/1/1Laws, Vol. 6, Pages 33: The Inclusion of the Lived Experience of Disability in Policymakinghttp://www.mdpi.com/2075-471X/6/4/33
This paper examines the process under way in Iceland to align national law with the UN Convention on the Rights of Persons with Disabilities, focusing on the Convention’s call for the active involvement of disabled people and their representative organizations in policy and decision making on matters that affect them. The paper draws on comments submitted by Icelandic DPOs on draft legislation intended to replace the existing law on services for disabled people, focusing on comments relating to their ability to participate in and affect the policymaking process. Furthermore, it draws on interviews with leaders of representative organizations of disabled people that solicited their views on the issue. The findings indicate that there is a reluctance on behalf of Icelandic authorities to make changes to the established process, which limits the active participation of disabled people and their representative organizations. The draft legislation has neither been revised to include provisions for expanding the participation of DPOs in policy and decision making, nor to ensure that disabled people themselves participate in the process.Laws, Vol. 6, Pages 33: The Inclusion of the Lived Experience of Disability in Policymaking

This paper examines the process under way in Iceland to align national law with the UN Convention on the Rights of Persons with Disabilities, focusing on the Convention’s call for the active involvement of disabled people and their representative organizations in policy and decision making on matters that affect them. The paper draws on comments submitted by Icelandic DPOs on draft legislation intended to replace the existing law on services for disabled people, focusing on comments relating to their ability to participate in and affect the policymaking process. Furthermore, it draws on interviews with leaders of representative organizations of disabled people that solicited their views on the issue. The findings indicate that there is a reluctance on behalf of Icelandic authorities to make changes to the established process, which limits the active participation of disabled people and their representative organizations. The draft legislation has neither been revised to include provisions for expanding the participation of DPOs in policy and decision making, nor to ensure that disabled people themselves participate in the process.

]]>The Inclusion of the Lived Experience of Disability in PolicymakingLaufey LöveRannveig TraustadóttirGerard QuinnJames Ricedoi: 10.3390/laws6040033Laws2017-12-20Laws2017-12-2064Article3310.3390/laws6040033http://www.mdpi.com/2075-471X/6/4/33Laws, Vol. 6, Pages 32: Vulnerability and the Right to Respect for Private Life as an Autonomous Source of Protection against Expulsion under Article 8 ECHRhttp://www.mdpi.com/2075-471X/6/4/32
This paper focuses on settled migrants and calls for the construction of the right to respect for private life as an autonomous source of protection against expulsion under Article 8 ECHR. I contend that, as a core part of human existence, private life warrants meaningful protection. I posit that the fact that all settled migrants have established private life in the host State brings it to the fore of Article 8 expulsion cases. This argument finds strong support in the concept of belonging and transnational migration theory; both tell us that settled migrants’ host State has become their ‘own country’. Drawing on earlier work, I reclaim vulnerability as a foundation and tool of International Human Rights Law with a view to recognising migrants within the jurisdiction of ECHR States as fully-fledged ECHR subjects and making the European Court of Human Rights responsive to their vulnerability. I make the case for absolute protection against expulsion for second (and subsequent)-generation migrants and settled migrants who have spent most of their adult life in the host State. In respect of other settled migrants, I argue that the minimum protection standard should be that expulsion is only justifiable in exceptional circumstances.Laws, Vol. 6, Pages 32: Vulnerability and the Right to Respect for Private Life as an Autonomous Source of Protection against Expulsion under Article 8 ECHR

This paper focuses on settled migrants and calls for the construction of the right to respect for private life as an autonomous source of protection against expulsion under Article 8 ECHR. I contend that, as a core part of human existence, private life warrants meaningful protection. I posit that the fact that all settled migrants have established private life in the host State brings it to the fore of Article 8 expulsion cases. This argument finds strong support in the concept of belonging and transnational migration theory; both tell us that settled migrants’ host State has become their ‘own country’. Drawing on earlier work, I reclaim vulnerability as a foundation and tool of International Human Rights Law with a view to recognising migrants within the jurisdiction of ECHR States as fully-fledged ECHR subjects and making the European Court of Human Rights responsive to their vulnerability. I make the case for absolute protection against expulsion for second (and subsequent)-generation migrants and settled migrants who have spent most of their adult life in the host State. In respect of other settled migrants, I argue that the minimum protection standard should be that expulsion is only justifiable in exceptional circumstances.

]]>Vulnerability and the Right to Respect for Private Life as an Autonomous Source of Protection against Expulsion under Article 8 ECHRSylvie Da Lombadoi: 10.3390/laws6040032Laws2017-12-16Laws2017-12-1664Article3210.3390/laws6040032http://www.mdpi.com/2075-471X/6/4/32Laws, Vol. 6, Pages 31: From Disability Rights to the Rights of the Dying (and Back Again)http://www.mdpi.com/2075-471X/6/4/31
This article argues for civil rights for dying people. The creation of such rights should be understood as complementary to, but distinct from, existing initiatives to provide dying people with social benefits. A basis for rights for terminally ill people can be found in the disability rights movement. Through an ethnographic case study of two dying individuals, I argue that terminally ill people can be subjected to disability discrimination as it is understood within the dominant theoretical framework of disability rights: the social model of disability. Nevertheless, while disability rights provides a theoretical basis for understanding discrimination against people who are dying, existing U.S. disability rights legislation largely does not recognize, nor address this discrimination. For this reason, it is necessary to develop a separate set of rights of the dying. I conclude by arguing that such “dying rights” are a logical extension of disability rights, and will bring ancillary benefits to both disabled people and the disability rights movement itself. There is thus a strong foundation for a legal and political alliance between disability rights advocates and advocates for people who are dying.Laws, Vol. 6, Pages 31: From Disability Rights to the Rights of the Dying (and Back Again)

This article argues for civil rights for dying people. The creation of such rights should be understood as complementary to, but distinct from, existing initiatives to provide dying people with social benefits. A basis for rights for terminally ill people can be found in the disability rights movement. Through an ethnographic case study of two dying individuals, I argue that terminally ill people can be subjected to disability discrimination as it is understood within the dominant theoretical framework of disability rights: the social model of disability. Nevertheless, while disability rights provides a theoretical basis for understanding discrimination against people who are dying, existing U.S. disability rights legislation largely does not recognize, nor address this discrimination. For this reason, it is necessary to develop a separate set of rights of the dying. I conclude by arguing that such “dying rights” are a logical extension of disability rights, and will bring ancillary benefits to both disabled people and the disability rights movement itself. There is thus a strong foundation for a legal and political alliance between disability rights advocates and advocates for people who are dying.

]]>From Disability Rights to the Rights of the Dying (and Back Again)Harold Braswelldoi: 10.3390/laws6040031Laws2017-12-15Laws2017-12-1564Article3110.3390/laws6040031http://www.mdpi.com/2075-471X/6/4/31Laws, Vol. 6, Pages 30: A New Protection Orientation and Framework for Refugees and Other Forced Migrantshttp://www.mdpi.com/2075-471X/6/4/30
The unprecedented current “refugee crisis,” with its 65 million plus uprooted people, demands a new protection orientation and framework for refugees and other forced migrants that are focused on the “root causes” of refugeehood, non-international protracted armed conflict or civil war. It is argued that four essential reforms are required to the international refugee protection system to respond to the “root causes” of refugees in the world today. The first calls for broadening the definition of who is a refugee to include “war refugees” as found in the 1984 Cartagena Declaration and the 1969 Organization of African Unity (OAU) Convention. The 1984 Cartagena Declaration is preferred because it has the most progressive and broadest legal definition of who is a refugee and, therefore, should be emulated by all regions and the UNHCR internationally. The second reform would be the adoption of the Cartagena Declaration decennial consultation process and its comprehensive Plan of Action by the UNHCR on a global basis. This process has proven to be a success in Latin America and ought to be adopted internationally to develop and to realize the progressive advancement of international protection for all persons who are fleeing persecution and armed conflict. The third major reform is to develop the capacity of the UN to be able to operate in the midst of an armed conflict situation in order to broker a ceasefire and, then, negotiate a peace agreement, particularly, in those situations where massed forced displacement has taken place or potentially could take place. The fourth reform calls for the UN to expand the Responsibility to Protect (R2P) doctrine to incorporate massed forced displacement, in addition to, war crimes, crimes against humanity, ethnic cleansing, and, genocide. This further implies that mass forced displacement ought to be criminalized and made a serious international crime, not simply in the international humanitarian law and international criminal law sense of forced deportation, transfers, and expulsions, by opposing military forces, but in situations of armed conflict when people flee of their own volition in order to save their lives. These four reforms do not require a reformulation or reconceptualization of the international refugee protection system but a reform of a number of key elements that would simultaneously address the “root causes” of refugees and, especially, mass forced displacement that is due principally to non-international protracted armed conflict or seemingly endless civil wars.Laws, Vol. 6, Pages 30: A New Protection Orientation and Framework for Refugees and Other Forced Migrants

The unprecedented current “refugee crisis,” with its 65 million plus uprooted people, demands a new protection orientation and framework for refugees and other forced migrants that are focused on the “root causes” of refugeehood, non-international protracted armed conflict or civil war. It is argued that four essential reforms are required to the international refugee protection system to respond to the “root causes” of refugees in the world today. The first calls for broadening the definition of who is a refugee to include “war refugees” as found in the 1984 Cartagena Declaration and the 1969 Organization of African Unity (OAU) Convention. The 1984 Cartagena Declaration is preferred because it has the most progressive and broadest legal definition of who is a refugee and, therefore, should be emulated by all regions and the UNHCR internationally. The second reform would be the adoption of the Cartagena Declaration decennial consultation process and its comprehensive Plan of Action by the UNHCR on a global basis. This process has proven to be a success in Latin America and ought to be adopted internationally to develop and to realize the progressive advancement of international protection for all persons who are fleeing persecution and armed conflict. The third major reform is to develop the capacity of the UN to be able to operate in the midst of an armed conflict situation in order to broker a ceasefire and, then, negotiate a peace agreement, particularly, in those situations where massed forced displacement has taken place or potentially could take place. The fourth reform calls for the UN to expand the Responsibility to Protect (R2P) doctrine to incorporate massed forced displacement, in addition to, war crimes, crimes against humanity, ethnic cleansing, and, genocide. This further implies that mass forced displacement ought to be criminalized and made a serious international crime, not simply in the international humanitarian law and international criminal law sense of forced deportation, transfers, and expulsions, by opposing military forces, but in situations of armed conflict when people flee of their own volition in order to save their lives. These four reforms do not require a reformulation or reconceptualization of the international refugee protection system but a reform of a number of key elements that would simultaneously address the “root causes” of refugees and, especially, mass forced displacement that is due principally to non-international protracted armed conflict or seemingly endless civil wars.

]]>A New Protection Orientation and Framework for Refugees and Other Forced MigrantsJames Simeondoi: 10.3390/laws6040030Laws2017-12-14Laws2017-12-1464Article3010.3390/laws6040030http://www.mdpi.com/2075-471X/6/4/30Laws, Vol. 6, Pages 29: The Relevance of Criminal Courts in the Global Southhttp://www.mdpi.com/2075-471X/6/4/29
The literature on comparative law has a long and robust tradition, but studies comparing courts and judicial systems are scarce. Comparative studies in the Global South, following Shapiro’s institutional approach, have aimed to measure the involvement of courts in politics by assessing the power of the judiciary in society, the level of judicial independence, and their role in the context of the judicialization of politics. The focus was on the high courts, including either Constitutional or Supreme Courts. Criminal courts have not received similar attention despite the influence of their everyday decisions on people’s lives and their perception of the judicial system. This article argues that developing a comparative approach for criminal courts in the Global South is needed to help understand the role they play in the development of the rule of law and democratic life. This comparative study helps understand the impact of judicial reform programmes in the Global South. These reforms, inspired by a neoliberal paradigm, have focused on improving the efficiency of the courts. The reforms have promoted managerial techniques detrimental to the standards of due process. Any assessment of the impact of the reforms on the courts in the Global South should start by recognising the widely differing settings under which they operate. This context is characterised by serious economic constraints, such as a lack of material and human resources, and a democratic deficit legacy from the past authoritarian regimes, including widespread police abuse and corruption. Given this context, the role of the courts in ensuring due process and the legality of police procedures is crucial. The impact of the judicial reforms promoting managerial rationality in recent decades must be analysed. To examine the role courts are playing in criminal matters, two cases were explored where courts have undergone extensive judicial reforms, Argentina and the Philippines.Laws, Vol. 6, Pages 29: The Relevance of Criminal Courts in the Global South

The literature on comparative law has a long and robust tradition, but studies comparing courts and judicial systems are scarce. Comparative studies in the Global South, following Shapiro’s institutional approach, have aimed to measure the involvement of courts in politics by assessing the power of the judiciary in society, the level of judicial independence, and their role in the context of the judicialization of politics. The focus was on the high courts, including either Constitutional or Supreme Courts. Criminal courts have not received similar attention despite the influence of their everyday decisions on people’s lives and their perception of the judicial system. This article argues that developing a comparative approach for criminal courts in the Global South is needed to help understand the role they play in the development of the rule of law and democratic life. This comparative study helps understand the impact of judicial reform programmes in the Global South. These reforms, inspired by a neoliberal paradigm, have focused on improving the efficiency of the courts. The reforms have promoted managerial techniques detrimental to the standards of due process. Any assessment of the impact of the reforms on the courts in the Global South should start by recognising the widely differing settings under which they operate. This context is characterised by serious economic constraints, such as a lack of material and human resources, and a democratic deficit legacy from the past authoritarian regimes, including widespread police abuse and corruption. Given this context, the role of the courts in ensuring due process and the legality of police procedures is crucial. The impact of the judicial reforms promoting managerial rationality in recent decades must be analysed. To examine the role courts are playing in criminal matters, two cases were explored where courts have undergone extensive judicial reforms, Argentina and the Philippines.

]]>The Relevance of Criminal Courts in the Global SouthPablo Leandro Ciocchinidoi: 10.3390/laws6040029Laws2017-12-12Laws2017-12-1264Article2910.3390/laws6040029http://www.mdpi.com/2075-471X/6/4/29Laws, Vol. 6, Pages 28: Gender Still Matters: Effects of Workplace Discrimination on Employment Schedules of Young Professionalshttp://www.mdpi.com/2075-471X/6/4/28
The influx of women into the legal profession has significantly changed the landscape of legal practice. Women lawyers today no longer face the challenges to entering the legal profession they encountered thirty years ago. However, despite these advancements, research continues to demonstrate that there are still gender-based issues women have to face in the legal workplace. Among these issues to date are the difficulties in combining responsibilities of work with responsibilities of families and children that underpin women’s employment and earning disadvantages. Using survey data from a national representative U.S. panel study of lawyers, we examine how work schedules, comparing full-time to part-time work, vary by personal disposition and workplace characteristics. Drawing from prominent explanations of gender inequality in the legal profession, we focus on inquiries of commitment to work, performance, ideal worker expectations, practice settings, and job satisfaction among dimensions of workplace characteristics and examine their effects on women and men lawyers’ work schedules. Logistic regression results show that work schedules significantly vary by gender, parental role, and experience of workplace discrimination. We find that, although all parents experience types of discrimination, there are still major differences in work schedules between mothers and fathers. Our study adds to the gender debate of employment and organizations by examining quantitatively experiences of workplace discrimination.Laws, Vol. 6, Pages 28: Gender Still Matters: Effects of Workplace Discrimination on Employment Schedules of Young Professionals

The influx of women into the legal profession has significantly changed the landscape of legal practice. Women lawyers today no longer face the challenges to entering the legal profession they encountered thirty years ago. However, despite these advancements, research continues to demonstrate that there are still gender-based issues women have to face in the legal workplace. Among these issues to date are the difficulties in combining responsibilities of work with responsibilities of families and children that underpin women’s employment and earning disadvantages. Using survey data from a national representative U.S. panel study of lawyers, we examine how work schedules, comparing full-time to part-time work, vary by personal disposition and workplace characteristics. Drawing from prominent explanations of gender inequality in the legal profession, we focus on inquiries of commitment to work, performance, ideal worker expectations, practice settings, and job satisfaction among dimensions of workplace characteristics and examine their effects on women and men lawyers’ work schedules. Logistic regression results show that work schedules significantly vary by gender, parental role, and experience of workplace discrimination. We find that, although all parents experience types of discrimination, there are still major differences in work schedules between mothers and fathers. Our study adds to the gender debate of employment and organizations by examining quantitatively experiences of workplace discrimination.

]]>Gender Still Matters: Effects of Workplace Discrimination on Employment Schedules of Young ProfessionalsGabriele PlickertJoyce Sterlingdoi: 10.3390/laws6040028Laws2017-11-27Laws2017-11-2764Article2810.3390/laws6040028http://www.mdpi.com/2075-471X/6/4/28Laws, Vol. 6, Pages 27: Disability, Procreation, and Justice in the United Stateshttp://www.mdpi.com/2075-471X/6/4/27
Parenting and procreation have long been contested legal terrain in the United States as exemplified by a history of abuses against marginalized populations including people with disabilities. While some of the most egregious abuses, such as state sponsored sterilization programs, are relics of the past, it remains true that people with disabilities face distinct and at times insurmountable roadblocks to procreation and parenting. This article details ongoing forms of procreative discrimination against people with disabilities, rejects common justifications for that discrimination, and offers proposals for better protecting the rights to procreate and parent for disabled people.Laws, Vol. 6, Pages 27: Disability, Procreation, and Justice in the United States

Parenting and procreation have long been contested legal terrain in the United States as exemplified by a history of abuses against marginalized populations including people with disabilities. While some of the most egregious abuses, such as state sponsored sterilization programs, are relics of the past, it remains true that people with disabilities face distinct and at times insurmountable roadblocks to procreation and parenting. This article details ongoing forms of procreative discrimination against people with disabilities, rejects common justifications for that discrimination, and offers proposals for better protecting the rights to procreate and parent for disabled people.

]]>Disability, Procreation, and Justice in the United StatesKimberly Mutchersondoi: 10.3390/laws6040027Laws2017-11-22Laws2017-11-2264Article2710.3390/laws6040027http://www.mdpi.com/2075-471X/6/4/27Laws, Vol. 6, Pages 26: “More Honoured in the Breach than in the Observance”—Self-Advocacy and Human Rightshttp://www.mdpi.com/2075-471X/6/4/26
Background: Since the adoption of the UN Convention on the Rights of Persons with Disabilities (CRPD), human rights have become central for disability advocacy. The CRPD requires that disabled people and their representative organisations (DPOs) have a prominent role in the implementation and monitoring of the Convention. However, the representation of people with intellectual disabilities or autistic people is still often indirect, carried out by parents or professionals. Methods: This is a qualitative research which looks at how self-advocates (SAs) with intellectual disabilities or autism participate in DPOs and how they see the role of human rights and laws such as the CRPD in their advocacy. Data was collected in the UK and in Hungary between October 2016 and May 2017. A total of 43 advocates (SAs and other advocates) were interviewed. For the analysis, thematic analysis was used. Results: findings indicate that most participants have limited knowledge of the CRPD and human rights. Human rights are usually seen as vague and distant ideas, less relevant to everyday lives. SAs may not feel competent to talk about the CRPD. The inclusion of SAs in DPOs is mostly tokenistic, lacking real participation. Conclusions: The CRPD can only bring meaningful change to SAs if they get full membership in DPOs.Laws, Vol. 6, Pages 26: “More Honoured in the Breach than in the Observance”—Self-Advocacy and Human Rights

Background: Since the adoption of the UN Convention on the Rights of Persons with Disabilities (CRPD), human rights have become central for disability advocacy. The CRPD requires that disabled people and their representative organisations (DPOs) have a prominent role in the implementation and monitoring of the Convention. However, the representation of people with intellectual disabilities or autistic people is still often indirect, carried out by parents or professionals. Methods: This is a qualitative research which looks at how self-advocates (SAs) with intellectual disabilities or autism participate in DPOs and how they see the role of human rights and laws such as the CRPD in their advocacy. Data was collected in the UK and in Hungary between October 2016 and May 2017. A total of 43 advocates (SAs and other advocates) were interviewed. For the analysis, thematic analysis was used. Results: findings indicate that most participants have limited knowledge of the CRPD and human rights. Human rights are usually seen as vague and distant ideas, less relevant to everyday lives. SAs may not feel competent to talk about the CRPD. The inclusion of SAs in DPOs is mostly tokenistic, lacking real participation. Conclusions: The CRPD can only bring meaningful change to SAs if they get full membership in DPOs.

]]>“More Honoured in the Breach than in the Observance”—Self-Advocacy and Human RightsGabor PetriJulie Beadle-BrownJill Bradshawdoi: 10.3390/laws6040026Laws2017-11-16Laws2017-11-1664Article2610.3390/laws6040026http://www.mdpi.com/2075-471X/6/4/26Laws, Vol. 6, Pages 25: Rethinking the Americans with Disabilities Act’s Insurance Safe Harborhttp://www.mdpi.com/2075-471X/6/4/25
Despite the importance of access to healthcare for the disabled, the Americans with Disabilities Act (ADA) has made little inroads in reducing disability-based discrimination by health insurers in the United States. One reason is undoubtedly the ADA’s insurance safe harbor, which explicitly permits insurers to discriminate on the basis of disability in health insurance so long as the differential treatment is supported by actuarial data and is not just intended to disadvantage the disabled. While the safe harbor’s harms are somewhat limited by the advent of the Affordable Care Act (ACA), they are not entirely neutralized. This article argues that there are both practical and principled reasons for amending the ADA to remove the insurance safe harbor. Practically speaking, the ADA could prove a useful tool to challenge aspects of the ACA that place the disabled at a disadvantage, but the insurance safe harbor limits this reach in meaningful ways. From a more principled or philosophical lens, the insurance safe harbor is a law that perpetuates stigma against the disabled and that no longer reflects the views of American society. For these reasons, and many others, a rethinking of the ADA’s insurance safe harbor is necessary and timely.Laws, Vol. 6, Pages 25: Rethinking the Americans with Disabilities Act’s Insurance Safe Harbor

Despite the importance of access to healthcare for the disabled, the Americans with Disabilities Act (ADA) has made little inroads in reducing disability-based discrimination by health insurers in the United States. One reason is undoubtedly the ADA’s insurance safe harbor, which explicitly permits insurers to discriminate on the basis of disability in health insurance so long as the differential treatment is supported by actuarial data and is not just intended to disadvantage the disabled. While the safe harbor’s harms are somewhat limited by the advent of the Affordable Care Act (ACA), they are not entirely neutralized. This article argues that there are both practical and principled reasons for amending the ADA to remove the insurance safe harbor. Practically speaking, the ADA could prove a useful tool to challenge aspects of the ACA that place the disabled at a disadvantage, but the insurance safe harbor limits this reach in meaningful ways. From a more principled or philosophical lens, the insurance safe harbor is a law that perpetuates stigma against the disabled and that no longer reflects the views of American society. For these reasons, and many others, a rethinking of the ADA’s insurance safe harbor is necessary and timely.

]]>Rethinking the Americans with Disabilities Act’s Insurance Safe HarborValarie Blakedoi: 10.3390/laws6040025Laws2017-11-07Laws2017-11-0764Article2510.3390/laws6040025http://www.mdpi.com/2075-471X/6/4/25Laws, Vol. 6, Pages 24: Spouse Sponsorship Policies: Focus on Serial Sponsorshttp://www.mdpi.com/2075-471X/6/4/24
Australian citizens or permanent residents can sponsor a spouse or prospective spouse for immigration, and concerns have been raised particularly in regards to serial or repeat sponsorship and the rights to safety for sponsored partners who are victims of domestic violence. There has been little research to date though on this type of family migration. By bringing together immigration statistics and policies from current national and international literature, this paper provides a more nuanced portrayal of patterns of spouse sponsorship and the potential problems of serial sponsorship and protection of those sponsored from intimate partner violence (IPV). We identify the limitation of the existing immigration policy and law for protecting the right of sponsored spouses who are mainly women. Some recommendations to better support these sponsored people are also explored.Laws, Vol. 6, Pages 24: Spouse Sponsorship Policies: Focus on Serial Sponsors

Australian citizens or permanent residents can sponsor a spouse or prospective spouse for immigration, and concerns have been raised particularly in regards to serial or repeat sponsorship and the rights to safety for sponsored partners who are victims of domestic violence. There has been little research to date though on this type of family migration. By bringing together immigration statistics and policies from current national and international literature, this paper provides a more nuanced portrayal of patterns of spouse sponsorship and the potential problems of serial sponsorship and protection of those sponsored from intimate partner violence (IPV). We identify the limitation of the existing immigration policy and law for protecting the right of sponsored spouses who are mainly women. Some recommendations to better support these sponsored people are also explored.

]]>Spouse Sponsorship Policies: Focus on Serial SponsorsNafiseh GhafourniaPatricia Eastealdoi: 10.3390/laws6040024Laws2017-11-01Laws2017-11-0164Review2410.3390/laws6040024http://www.mdpi.com/2075-471X/6/4/24Laws, Vol. 6, Pages 23: Barriers to Physician Aid in Dying for People with Disabilitieshttp://www.mdpi.com/2075-471X/6/4/23
Terminally ill people with disabilities face multiple barriers when seeking physician aid in dying (PAD) in the United States. The first is legality. Efforts to legalize the practice have been thwarted in dozens of states in part due to vocal opposition by advocates for people with disabilities who contend that legalized aid in dying discriminates against and harms people with disabilities by leading to their premature and unnecessary deaths. Some disability rights advocates disagree with their colleagues, however, and support legalization on the ground that it promotes autonomy and independence at the end of life. For proponents, legalization in six states is proving to be an illusive victory. Emerging reports from the states where PAD is legal suggest that people with disabilities may face special and impenetrable barriers when seeking legal aid in dying. This article identifies four such barriers: procedural protections embedded in PAD statutes; physician objection; cost; and a rule pertaining to California veterans. The article calls for additional study to determine the extent to which these barriers have a disparate impact on care options available to terminally-ill people with disabilities.Laws, Vol. 6, Pages 23: Barriers to Physician Aid in Dying for People with Disabilities

Terminally ill people with disabilities face multiple barriers when seeking physician aid in dying (PAD) in the United States. The first is legality. Efforts to legalize the practice have been thwarted in dozens of states in part due to vocal opposition by advocates for people with disabilities who contend that legalized aid in dying discriminates against and harms people with disabilities by leading to their premature and unnecessary deaths. Some disability rights advocates disagree with their colleagues, however, and support legalization on the ground that it promotes autonomy and independence at the end of life. For proponents, legalization in six states is proving to be an illusive victory. Emerging reports from the states where PAD is legal suggest that people with disabilities may face special and impenetrable barriers when seeking legal aid in dying. This article identifies four such barriers: procedural protections embedded in PAD statutes; physician objection; cost; and a rule pertaining to California veterans. The article calls for additional study to determine the extent to which these barriers have a disparate impact on care options available to terminally-ill people with disabilities.

]]>Barriers to Physician Aid in Dying for People with DisabilitiesAlicia Ouellettedoi: 10.3390/laws6040023Laws2017-11-01Laws2017-11-0164Review2310.3390/laws6040023http://www.mdpi.com/2075-471X/6/4/23Laws, Vol. 6, Pages 22: Community Integration of People with Disabilities: Can Olmstead Protect Against Retrenchment?http://www.mdpi.com/2075-471X/6/4/22
Since the passage of the Americans with Disabilities Act (ADA) in 1990, states have made significant progress in enabling Americans with disabilities to live in their communities, rather than institutions. That progress reflects the combined effect of the Supreme Court’s holding in Olmstead v. L.C. ex rel. Zimring, that states’ failure to provide services to disabled persons in the community may violate the ADA, and amendments to Medicaid that permit states to devote funding to home and community-based services (HCBS). This article considers whether Olmstead and its progeny could act as a check on a potential retrenchment of states’ support for HCBS in the event that states face severe reductions in federal funding for Medicaid, as was threatened by Republican efforts in 2017 to “repeal and replace” the Affordable Care Act and to restructure Medicaid. The article concludes that Olmstead provides a strong basis for challenging a state’s elimination or severe curtailment of existing HCBS programs, but that the fact-specific nature of a state’s likely “fundamental alteration” defense precludes predicting the outcome of such a challenge. Despite this legal uncertainty, protests mounted by people with disabilities, in which they demanded freedom from institutionalization, may have helped cement the idea that community integration is a civil right in the public’s mind.Laws, Vol. 6, Pages 22: Community Integration of People with Disabilities: Can Olmstead Protect Against Retrenchment?

Since the passage of the Americans with Disabilities Act (ADA) in 1990, states have made significant progress in enabling Americans with disabilities to live in their communities, rather than institutions. That progress reflects the combined effect of the Supreme Court’s holding in Olmstead v. L.C. ex rel. Zimring, that states’ failure to provide services to disabled persons in the community may violate the ADA, and amendments to Medicaid that permit states to devote funding to home and community-based services (HCBS). This article considers whether Olmstead and its progeny could act as a check on a potential retrenchment of states’ support for HCBS in the event that states face severe reductions in federal funding for Medicaid, as was threatened by Republican efforts in 2017 to “repeal and replace” the Affordable Care Act and to restructure Medicaid. The article concludes that Olmstead provides a strong basis for challenging a state’s elimination or severe curtailment of existing HCBS programs, but that the fact-specific nature of a state’s likely “fundamental alteration” defense precludes predicting the outcome of such a challenge. Despite this legal uncertainty, protests mounted by people with disabilities, in which they demanded freedom from institutionalization, may have helped cement the idea that community integration is a civil right in the public’s mind.

]]>Community Integration of People with Disabilities: Can Olmstead Protect Against Retrenchment?Mary Crossleydoi: 10.3390/laws6040022Laws2017-10-24Laws2017-10-2464Article2210.3390/laws6040022http://www.mdpi.com/2075-471X/6/4/22Laws, Vol. 6, Pages 21: Disparities in Private Health Insurance Coverage of Skilled Carehttp://www.mdpi.com/2075-471X/6/4/21
This article compares and contrasts public and private health insurance coverage of skilled medical rehabilitation, including cognitive rehabilitation, physical therapy, occupational therapy, speech-language pathology, and skilled nursing services (collectively, skilled care). As background, prior scholars writing in this area have focused on Medicare coverage of skilled care and have challenged coverage determinations limiting Medicare coverage to beneficiaries who are able to demonstrate improvement in their conditions within a specific period of time (the Improvement Standard). By and large, these scholars have applauded the settlement agreement approved on 24 January 2013, by the U.S. District Court for the District of Vermont in Jimmo v. Sebelius (Jimmo), as well as related motions, rulings, orders, government fact sheets, and Medicare program manual statements clarifying that Medicare covers skilled care that is necessary to prevent or slow a beneficiary’s deterioration or to maintain a beneficiary at his or her maximum practicable level of function even though no further improvement in the beneficiary’s condition is expected. Scholars who have focused on beneficiaries who have suffered severe brain injuries, in particular, have framed public insurance coverage of skilled brain rehabilitation as an important civil, disability, and educational right. Given that approximately two-thirds of Americans with health insurance are covered by private health insurance and that many private health plans continue to require their insureds to demonstrate improvement within a short period of time to obtain coverage of skilled care, scholarship assessing private health insurance coverage of skilled care is important but noticeably absent from the literature. This article responds to this gap by highlighting state benchmark plans’ and other private health plans’ continued use of the Improvement Standard in skilled care coverage decisions and identifying possible legal approaches for removing the Improvement Standard in private health insurance. This article also calls for scholars in health law, disability law, and insurance law, among other doctrinal areas, to evaluate the ethics and values associated with the continued use of the Improvement Standard in private health insurance.Laws, Vol. 6, Pages 21: Disparities in Private Health Insurance Coverage of Skilled Care

This article compares and contrasts public and private health insurance coverage of skilled medical rehabilitation, including cognitive rehabilitation, physical therapy, occupational therapy, speech-language pathology, and skilled nursing services (collectively, skilled care). As background, prior scholars writing in this area have focused on Medicare coverage of skilled care and have challenged coverage determinations limiting Medicare coverage to beneficiaries who are able to demonstrate improvement in their conditions within a specific period of time (the Improvement Standard). By and large, these scholars have applauded the settlement agreement approved on 24 January 2013, by the U.S. District Court for the District of Vermont in Jimmo v. Sebelius (Jimmo), as well as related motions, rulings, orders, government fact sheets, and Medicare program manual statements clarifying that Medicare covers skilled care that is necessary to prevent or slow a beneficiary’s deterioration or to maintain a beneficiary at his or her maximum practicable level of function even though no further improvement in the beneficiary’s condition is expected. Scholars who have focused on beneficiaries who have suffered severe brain injuries, in particular, have framed public insurance coverage of skilled brain rehabilitation as an important civil, disability, and educational right. Given that approximately two-thirds of Americans with health insurance are covered by private health insurance and that many private health plans continue to require their insureds to demonstrate improvement within a short period of time to obtain coverage of skilled care, scholarship assessing private health insurance coverage of skilled care is important but noticeably absent from the literature. This article responds to this gap by highlighting state benchmark plans’ and other private health plans’ continued use of the Improvement Standard in skilled care coverage decisions and identifying possible legal approaches for removing the Improvement Standard in private health insurance. This article also calls for scholars in health law, disability law, and insurance law, among other doctrinal areas, to evaluate the ethics and values associated with the continued use of the Improvement Standard in private health insurance.

]]>Disparities in Private Health Insurance Coverage of Skilled CareStacey Tovinodoi: 10.3390/laws6040021Laws2017-10-20Laws2017-10-2064Article2110.3390/laws6040021http://www.mdpi.com/2075-471X/6/4/21Laws, Vol. 6, Pages 20: Sex, Sexuality, Sexual Offending and the Rights of Persons with Mental Disabilitieshttp://www.mdpi.com/2075-471X/6/4/20
Although the legal issues related to sexual autonomy and sexual offending are significantly different, the resistance to providing adequate and effective counsel and the employment of the vividness heuristic (to privilege anecdote and reject valid and reliable research) is similar in both cases. The past forty years has seen an explosion of interest in mental disability law, and a significant expansion of rights for the population of persons with mental disabilities, both in institutions and the community, during which the society has witnessed a revolution in American mental disability law. It saw the first broad-based, federal civil rights statutes enacted on behalf of persons with mental disabilities. It witnessed the creation of a “patients’ bar” to provide legal representation to such persons. But this revolution largely bypassed persons seeking to argue for sexual autonomy and seeking to apply procedural and substantive due process to matters involving invocation of the sexually violent predator status. However, at the same time that all this happened, another parallel set of developments has had a profound application on mental disability law—on case law, statutes, administrative regulations and lawyers’ roles. The expansion of the school of legal analysis known as therapeutic jurisprudence has caused scholars to reconsider many of the basic principles of this area of law, and it is critical that any analysis of mental disability law take the insights of this area seriously. The question we address in this paper is this: although there has been a general “revolution” in mental disability law, there are those whom it has not affected. To what extent does the law that governs sexual autonomy and that governs matters involving alleged sexually violent predators comport with these therapeutic jurisprudence principles? This paper considers that question.Laws, Vol. 6, Pages 20: Sex, Sexuality, Sexual Offending and the Rights of Persons with Mental Disabilities

Although the legal issues related to sexual autonomy and sexual offending are significantly different, the resistance to providing adequate and effective counsel and the employment of the vividness heuristic (to privilege anecdote and reject valid and reliable research) is similar in both cases. The past forty years has seen an explosion of interest in mental disability law, and a significant expansion of rights for the population of persons with mental disabilities, both in institutions and the community, during which the society has witnessed a revolution in American mental disability law. It saw the first broad-based, federal civil rights statutes enacted on behalf of persons with mental disabilities. It witnessed the creation of a “patients’ bar” to provide legal representation to such persons. But this revolution largely bypassed persons seeking to argue for sexual autonomy and seeking to apply procedural and substantive due process to matters involving invocation of the sexually violent predator status. However, at the same time that all this happened, another parallel set of developments has had a profound application on mental disability law—on case law, statutes, administrative regulations and lawyers’ roles. The expansion of the school of legal analysis known as therapeutic jurisprudence has caused scholars to reconsider many of the basic principles of this area of law, and it is critical that any analysis of mental disability law take the insights of this area seriously. The question we address in this paper is this: although there has been a general “revolution” in mental disability law, there are those whom it has not affected. To what extent does the law that governs sexual autonomy and that governs matters involving alleged sexually violent predators comport with these therapeutic jurisprudence principles? This paper considers that question.

]]>Sex, Sexuality, Sexual Offending and the Rights of Persons with Mental DisabilitiesMichael PerlinHeather CucoloAlison Lynchdoi: 10.3390/laws6040020Laws2017-10-18Laws2017-10-1864Article2010.3390/laws6040020http://www.mdpi.com/2075-471X/6/4/20Laws, Vol. 6, Pages 19: Multiple Competences of Judicial and Social Intervention: Portuguese Public Prosecutors in Actionhttp://www.mdpi.com/2075-471X/6/4/19
Public Prosecutors have not received much attention from international, suprastate, state and/or associative institutions in terms of seeking to influence the adoption of a common organisational model by the most diverse countries. What we have instead is mainly the approval, at different moments, of guiding principles for the exercise of functions—primarily of judges, but also, since the late 1980s, of Public Prosecutors—with special emphasis on issues of autonomy and impartiality regarding their competences and the conditions in which prosecution is carried out. However, in countries such as Portugal, Public Prosecutors exercise a wide range of competences in various legal areas, a fact that turns them into key actors in a context of evaluating the performance of the judicial system and when efforts are being made to improve its functioning, even in the midst of financial constraints. This is the backdrop to the present article, which stems from the need to discuss the functioning of the Public Prosecution Service and its professional practices in order to promote the circulation of ideas and solutions for possible judicial reforms in the model currently in force in Portugal. It is not a question of looking for the “perfect model” or of trying to achieve an “ideal synthesis,” but rather of highlighting the main aspects that can contribute to the defence of legality and the promotion of access to law and justice through the action of Public Prosecutors. In order to achieve such a goal, it is necessary for Public Prosecutors to assume a new paradigm, centred on the defence of citizenship rights. The main objective here is to discuss and reflect on the identity, competences and professional practice of Portugal’s Public Prosecutors in the context of major transformations in the judicial systems and in the legal professions themselves, both as key actors and as promoters of citizens' access to law and justice in the various legal areas in which they are active participants. The aim of this article is thus to analyse the way in which the Public Prosecutors’ exercise of their multiple competences, not only in relation to citizens but also with regard to their intermediary role between the courts and the various entities and professions at play, both public and private, contributes to achieving better justice for all.Laws, Vol. 6, Pages 19: Multiple Competences of Judicial and Social Intervention: Portuguese Public Prosecutors in Action

Public Prosecutors have not received much attention from international, suprastate, state and/or associative institutions in terms of seeking to influence the adoption of a common organisational model by the most diverse countries. What we have instead is mainly the approval, at different moments, of guiding principles for the exercise of functions—primarily of judges, but also, since the late 1980s, of Public Prosecutors—with special emphasis on issues of autonomy and impartiality regarding their competences and the conditions in which prosecution is carried out. However, in countries such as Portugal, Public Prosecutors exercise a wide range of competences in various legal areas, a fact that turns them into key actors in a context of evaluating the performance of the judicial system and when efforts are being made to improve its functioning, even in the midst of financial constraints. This is the backdrop to the present article, which stems from the need to discuss the functioning of the Public Prosecution Service and its professional practices in order to promote the circulation of ideas and solutions for possible judicial reforms in the model currently in force in Portugal. It is not a question of looking for the “perfect model” or of trying to achieve an “ideal synthesis,” but rather of highlighting the main aspects that can contribute to the defence of legality and the promotion of access to law and justice through the action of Public Prosecutors. In order to achieve such a goal, it is necessary for Public Prosecutors to assume a new paradigm, centred on the defence of citizenship rights. The main objective here is to discuss and reflect on the identity, competences and professional practice of Portugal’s Public Prosecutors in the context of major transformations in the judicial systems and in the legal professions themselves, both as key actors and as promoters of citizens' access to law and justice in the various legal areas in which they are active participants. The aim of this article is thus to analyse the way in which the Public Prosecutors’ exercise of their multiple competences, not only in relation to citizens but also with regard to their intermediary role between the courts and the various entities and professions at play, both public and private, contributes to achieving better justice for all.

]]>Multiple Competences of Judicial and Social Intervention: Portuguese Public Prosecutors in ActionJoão Diasdoi: 10.3390/laws6040019Laws2017-10-17Laws2017-10-1764Article1910.3390/laws6040019http://www.mdpi.com/2075-471X/6/4/19Laws, Vol. 6, Pages 18: Prioritising Supported Decision-Making: Running on Empty or a Basis for Glacial-To-Steady Progress?http://www.mdpi.com/2075-471X/6/4/18
Honouring the requirement of the Convention on the Rights of Persons with Disabilities to introduce supported decision-making (SD) has largely been a case of much talk and little real action. As a socio-economic right, actualising support is resource-intensive as well as being fairly uncharted territory in terms of what works, to what degree and for how long benefits last. This paper, drawing lightly on mainly Australian examples, considers unexplored (and sometimes unorthodox) approaches such as the ‘needs-based’ principle for setting social welfare priorities as possible ways of revitalising SD through progressive realisation, whether through civil society programs or under the law. It argues that pure repeal of proxy decision-making on its own is not viable in realpolitik terms so progressive realisation of ‘repeal with adequate support’ must instead be devised for SD implementation to progress.Laws, Vol. 6, Pages 18: Prioritising Supported Decision-Making: Running on Empty or a Basis for Glacial-To-Steady Progress?

Honouring the requirement of the Convention on the Rights of Persons with Disabilities to introduce supported decision-making (SD) has largely been a case of much talk and little real action. As a socio-economic right, actualising support is resource-intensive as well as being fairly uncharted territory in terms of what works, to what degree and for how long benefits last. This paper, drawing lightly on mainly Australian examples, considers unexplored (and sometimes unorthodox) approaches such as the ‘needs-based’ principle for setting social welfare priorities as possible ways of revitalising SD through progressive realisation, whether through civil society programs or under the law. It argues that pure repeal of proxy decision-making on its own is not viable in realpolitik terms so progressive realisation of ‘repeal with adequate support’ must instead be devised for SD implementation to progress.

]]>Prioritising Supported Decision-Making: Running on Empty or a Basis for Glacial-To-Steady Progress?Terry Carneydoi: 10.3390/laws6040018Laws2017-10-12Laws2017-10-1264Article1810.3390/laws6040018http://www.mdpi.com/2075-471X/6/4/18Laws, Vol. 6, Pages 17: Reading Alexander V. Choate Rightly: Now is the Timehttp://www.mdpi.com/2075-471X/6/4/17
Whatever happens to the Affordable Care Act (ACA) over the next few years, it is fair to assume that state Medicaid programs will be subjected to cost control measures. Despite the recent deployment of substantial arguments to the contrary, the belief still persists that the Supreme Court’s decision in Alexander v. Choate over thirty years ago stands for the proposition that disability anti-discrimination law does not impose requirements on the structure of Medicaid benefits. This belief is misleading at best. In this article, we challenge the access/content distinction and the straitened interpretation of Alexander v. Choate that has resulted from it. We then use cases drawn from education to point the way to a more robust analysis of meaningful access to health care and the constraints it places on the design of state Medicaid programs.Laws, Vol. 6, Pages 17: Reading Alexander V. Choate Rightly: Now is the Time

Whatever happens to the Affordable Care Act (ACA) over the next few years, it is fair to assume that state Medicaid programs will be subjected to cost control measures. Despite the recent deployment of substantial arguments to the contrary, the belief still persists that the Supreme Court’s decision in Alexander v. Choate over thirty years ago stands for the proposition that disability anti-discrimination law does not impose requirements on the structure of Medicaid benefits. This belief is misleading at best. In this article, we challenge the access/content distinction and the straitened interpretation of Alexander v. Choate that has resulted from it. We then use cases drawn from education to point the way to a more robust analysis of meaningful access to health care and the constraints it places on the design of state Medicaid programs.

]]>Reading Alexander V. Choate Rightly: Now is the TimeLeslie FrancisAnita Silversdoi: 10.3390/laws6040017Laws2017-10-08Laws2017-10-0864Article1710.3390/laws6040017http://www.mdpi.com/2075-471X/6/4/17Laws, Vol. 6, Pages 16: Tax Policy in Action: 2016 Tax Amnesty Experience of the Republic of Indonesiahttp://www.mdpi.com/2075-471X/6/4/16
Tax amnesty programs are often used by governments to improve tax compliance and to increase tax revenue. However, the policy choice to provide a tax amnesty often results in adverse consequences, including the violation of other legal rules. For this reason, the policy choice to offer a tax amnesty (‘tax amnesty policy’) is often controversial. The tax amnesty policy and resulting program offered by the Government of Indonesia has been criticized both because it is considered to be unfair and because it favors the perpetrators of tax evasion. In particular, the tax amnesty law offered special treatment to taxpayers who participated in the program, such as no checking of the source of funds, no checking of the financial statements reported by law enforcers, protection from punishment on the financial reports provided to the Director General of Taxation, and the requirement to pay only a small penalty. Tax amnesty programs also provide the potential for money laundering. This is certainly the case in Indonesia. In addition, tax amnesty programs weaken law enforcement in Indonesia; in particular, in the areas of corruption and money laundering. This is because law enforcement officers cannot investigate the perpetrators of white-collar crime that benefit from the tax amnesty program. Under the terms of the tax amnesty program, the financial data is not accessible by them.Laws, Vol. 6, Pages 16: Tax Policy in Action: 2016 Tax Amnesty Experience of the Republic of Indonesia

Tax amnesty programs are often used by governments to improve tax compliance and to increase tax revenue. However, the policy choice to provide a tax amnesty often results in adverse consequences, including the violation of other legal rules. For this reason, the policy choice to offer a tax amnesty (‘tax amnesty policy’) is often controversial. The tax amnesty policy and resulting program offered by the Government of Indonesia has been criticized both because it is considered to be unfair and because it favors the perpetrators of tax evasion. In particular, the tax amnesty law offered special treatment to taxpayers who participated in the program, such as no checking of the source of funds, no checking of the financial statements reported by law enforcers, protection from punishment on the financial reports provided to the Director General of Taxation, and the requirement to pay only a small penalty. Tax amnesty programs also provide the potential for money laundering. This is certainly the case in Indonesia. In addition, tax amnesty programs weaken law enforcement in Indonesia; in particular, in the areas of corruption and money laundering. This is because law enforcement officers cannot investigate the perpetrators of white-collar crime that benefit from the tax amnesty program. Under the terms of the tax amnesty program, the financial data is not accessible by them.

]]>Tax Policy in Action: 2016 Tax Amnesty Experience of the Republic of IndonesiaEmmiryzan Saiddoi: 10.3390/laws6040016Laws2017-09-28Laws2017-09-2864Article1610.3390/laws6040016http://www.mdpi.com/2075-471X/6/4/16Laws, Vol. 6, Pages 15: Some Parents Are More Equal than Others: Discrimination against People with Disabilities under Adoption Lawhttp://www.mdpi.com/2075-471X/6/3/15
Article 23 of the Convention on the Rights of Persons with Disabilities (CRPD) explicitly includes ‘the adoption of children’ as a right to which people with disabilities are equally entitled. Despite the CRPD having been in force for over nine years, research is yet to consider whether CRPD signatory states have brought their respective adoption regimes in line with their obligations under art 23 of the CRPD. Using the laws of the Australian state of Victoria by way of case study, this article aims to shed light on the difficulties people with disabilities still face when attempting to adopt children. In terms of methodology, this article conducts an interpretive critique of Victoria’s adoption law against art 23 of the CRPD, which it interprets mainly through the lens of the social model of disability. Ultimately, this article finds that Victoria’s adoption framework closely resembles the adoption regimes of many other CRPD signatories, yet it clearly fails to uphold Australia’s obligations under the CRPD. This is both as a result of the words of the legislation as well as their implementation in practice. This article proposes a suite of changes, both legislative and cultural, to bring Victoria’s adoption framework in line with art 23, which it hopes will serve as a catalyst for change in other CRPD signatory states.Laws, Vol. 6, Pages 15: Some Parents Are More Equal than Others: Discrimination against People with Disabilities under Adoption Law

Article 23 of the Convention on the Rights of Persons with Disabilities (CRPD) explicitly includes ‘the adoption of children’ as a right to which people with disabilities are equally entitled. Despite the CRPD having been in force for over nine years, research is yet to consider whether CRPD signatory states have brought their respective adoption regimes in line with their obligations under art 23 of the CRPD. Using the laws of the Australian state of Victoria by way of case study, this article aims to shed light on the difficulties people with disabilities still face when attempting to adopt children. In terms of methodology, this article conducts an interpretive critique of Victoria’s adoption law against art 23 of the CRPD, which it interprets mainly through the lens of the social model of disability. Ultimately, this article finds that Victoria’s adoption framework closely resembles the adoption regimes of many other CRPD signatories, yet it clearly fails to uphold Australia’s obligations under the CRPD. This is both as a result of the words of the legislation as well as their implementation in practice. This article proposes a suite of changes, both legislative and cultural, to bring Victoria’s adoption framework in line with art 23, which it hopes will serve as a catalyst for change in other CRPD signatory states.

]]>Some Parents Are More Equal than Others: Discrimination against People with Disabilities under Adoption LawBlake Connelldoi: 10.3390/laws6030015Laws2017-08-23Laws2017-08-2363Article1510.3390/laws6030015http://www.mdpi.com/2075-471X/6/3/15Laws, Vol. 6, Pages 14: Human Trafficking and Study Abroadhttp://www.mdpi.com/2075-471X/6/3/14
There are many risks that students face while abroad; from tragic accidents, illness, and disease to becoming victims of violent crimes. Human trafficking is an international threat facing everyone. While victims of human trafficking come from all walks of life, in particular, individuals belonging to vulnerable populations are often targeted for this method of exploitation. Cultural competency, language barriers, and ignorance as to resources are all factors which contribute to the increased vulnerability of students studying abroad. An institution providing opportunities for international study should develop an effective approach to mitigate the risk of human trafficking through programs designed to enable students to protect themselves and others effectively. This paper comments on best practices for risk management, and explores different avenues and relevant law for increased transparency in study abroad risk.Laws, Vol. 6, Pages 14: Human Trafficking and Study Abroad

There are many risks that students face while abroad; from tragic accidents, illness, and disease to becoming victims of violent crimes. Human trafficking is an international threat facing everyone. While victims of human trafficking come from all walks of life, in particular, individuals belonging to vulnerable populations are often targeted for this method of exploitation. Cultural competency, language barriers, and ignorance as to resources are all factors which contribute to the increased vulnerability of students studying abroad. An institution providing opportunities for international study should develop an effective approach to mitigate the risk of human trafficking through programs designed to enable students to protect themselves and others effectively. This paper comments on best practices for risk management, and explores different avenues and relevant law for increased transparency in study abroad risk.

]]>Human Trafficking and Study AbroadTaylor S. Parkerdoi: 10.3390/laws6030014Laws2017-08-18Laws2017-08-1863Article1410.3390/laws6030014http://www.mdpi.com/2075-471X/6/3/14Laws, Vol. 6, Pages 13: IP Things as Boundary Objects: The Case of the Copyright Workhttp://www.mdpi.com/2075-471X/6/3/13
The goal of this article is to initiate the exploration of the meanings and functions of the things of intellectual property: the work of authorship (or copyright work) in copyright, the invention in patent, and the mark and the sign in trademark. The article focuses firstly on the example of copyright work. Relevant challenges are both technological and conceptual, because these things blend the material and the immaterial. Works are neither as clearly defined nor as clearly limited as copyright law often suggests they are. To explain and justify that proposition, the article borrows from information science literature exploring boundary objects, which are stable physical and intangible things that align distinct but overlapping communities of practice in flexible ways, via interpretive openness. The article shows that the meanings of the work in copyright law can be unified conceptually in the sense that the work operates as a boundary object across a number of different legal and cultural divides. This view of the work clarifies the distinct status of relevant communities and practices in copyright but also bridges them in copyright’s construction and governance of culture. None of the boundaries represented in these boundary objects is fixed or impermeable. Their very dynamic and sometimes porous character is precisely the governance role illuminated here.Laws, Vol. 6, Pages 13: IP Things as Boundary Objects: The Case of the Copyright Work

The goal of this article is to initiate the exploration of the meanings and functions of the things of intellectual property: the work of authorship (or copyright work) in copyright, the invention in patent, and the mark and the sign in trademark. The article focuses firstly on the example of copyright work. Relevant challenges are both technological and conceptual, because these things blend the material and the immaterial. Works are neither as clearly defined nor as clearly limited as copyright law often suggests they are. To explain and justify that proposition, the article borrows from information science literature exploring boundary objects, which are stable physical and intangible things that align distinct but overlapping communities of practice in flexible ways, via interpretive openness. The article shows that the meanings of the work in copyright law can be unified conceptually in the sense that the work operates as a boundary object across a number of different legal and cultural divides. This view of the work clarifies the distinct status of relevant communities and practices in copyright but also bridges them in copyright’s construction and governance of culture. None of the boundaries represented in these boundary objects is fixed or impermeable. Their very dynamic and sometimes porous character is precisely the governance role illuminated here.

]]>IP Things as Boundary Objects: The Case of the Copyright WorkMichael Madisondoi: 10.3390/laws6030013Laws2017-08-16Laws2017-08-1663Article1310.3390/laws6030013http://www.mdpi.com/2075-471X/6/3/13Laws, Vol. 6, Pages 12: Case Selection in the Russian Constitutional Court: The Role of Legal Assistantshttp://www.mdpi.com/2075-471X/6/3/12
Constitutional courts throughout the world are highly selective in forming their agenda. Scholars who have studied the setting of agenda have not reached agreement on the role of legal clerks in this process. This article focuses on the role of the Secretariat of the Russian Constitutional Court in the case selection process. The Russian Constitutional Court receives about twenty thousand petitions annually. Nevertheless, only dozens of them are decided on their merits by judges. Through the description of the case movement process we show that the Secretariat does have at least moderate influence on case selection. Using data received from observation and interviews with the Court’s staff and judges, we find that legal assistants’ decision on whether to promote a case to judges is based on different logics of decision making. First, they are bound by legal requirements. However, bureaucratic logic and the logic of appropriateness can also influence the amount of incentives to promote cases to judges.Laws, Vol. 6, Pages 12: Case Selection in the Russian Constitutional Court: The Role of Legal Assistants

Constitutional courts throughout the world are highly selective in forming their agenda. Scholars who have studied the setting of agenda have not reached agreement on the role of legal clerks in this process. This article focuses on the role of the Secretariat of the Russian Constitutional Court in the case selection process. The Russian Constitutional Court receives about twenty thousand petitions annually. Nevertheless, only dozens of them are decided on their merits by judges. Through the description of the case movement process we show that the Secretariat does have at least moderate influence on case selection. Using data received from observation and interviews with the Court’s staff and judges, we find that legal assistants’ decision on whether to promote a case to judges is based on different logics of decision making. First, they are bound by legal requirements. However, bureaucratic logic and the logic of appropriateness can also influence the amount of incentives to promote cases to judges.

]]>Case Selection in the Russian Constitutional Court: The Role of Legal AssistantsAryna Dzmitryievadoi: 10.3390/laws6030012Laws2017-08-15Laws2017-08-1563Article1210.3390/laws6030012http://www.mdpi.com/2075-471X/6/3/12Laws, Vol. 6, Pages 11: Back to the Future: The Digital Millennium Copyright Act and the Trans-Pacific Partnershiphttp://www.mdpi.com/2075-471X/6/3/11
The Trans-Pacific Partnership (TPP) is a trade agreement, which seeks to regulate copyright law, intermediary liability, and technological protection measures. The United States Government under President Barack Obama sought to export key features of the Digital Millennium Copyright Act 1998 (US) (DMCA). Drawing upon the work of Joseph Stiglitz, this paper expresses concerns that the TPP would entrench DMCA measures into the laws of a dozen Pacific Rim countries. This study examines four key jurisdictions—the United States, Canada, Australia, and New Zealand—participating in the TPP. This paper has three main parts. Part 2 focuses upon the takedown-and-notice scheme, safe harbours, and intermediary liability under the TPP. Elements of the safe harbours regime in the DMCA have been embedded into the international agreement. Part 3 examines technological protection measures—especially in light of a constitutional challenge to the DMCA. Part 4 looks briefly at electronic rights management. This paper concludes that the model of the DMCA is unsuitable for a template for copyright protection in the Pacific Rim in international trade agreements. It contends that our future copyright laws need to be responsive to new technological developments in the digital age—such as Big Data, cloud computing, search engines, and social media. There is also a need to resolve the complex interactions between intellectual property, electronic commerce, and investor-state dispute settlement in trade agreements.Laws, Vol. 6, Pages 11: Back to the Future: The Digital Millennium Copyright Act and the Trans-Pacific Partnership

The Trans-Pacific Partnership (TPP) is a trade agreement, which seeks to regulate copyright law, intermediary liability, and technological protection measures. The United States Government under President Barack Obama sought to export key features of the Digital Millennium Copyright Act 1998 (US) (DMCA). Drawing upon the work of Joseph Stiglitz, this paper expresses concerns that the TPP would entrench DMCA measures into the laws of a dozen Pacific Rim countries. This study examines four key jurisdictions—the United States, Canada, Australia, and New Zealand—participating in the TPP. This paper has three main parts. Part 2 focuses upon the takedown-and-notice scheme, safe harbours, and intermediary liability under the TPP. Elements of the safe harbours regime in the DMCA have been embedded into the international agreement. Part 3 examines technological protection measures—especially in light of a constitutional challenge to the DMCA. Part 4 looks briefly at electronic rights management. This paper concludes that the model of the DMCA is unsuitable for a template for copyright protection in the Pacific Rim in international trade agreements. It contends that our future copyright laws need to be responsive to new technological developments in the digital age—such as Big Data, cloud computing, search engines, and social media. There is also a need to resolve the complex interactions between intellectual property, electronic commerce, and investor-state dispute settlement in trade agreements.

]]>Back to the Future: The Digital Millennium Copyright Act and the Trans-Pacific PartnershipMatthew Rimmerdoi: 10.3390/laws6030011Laws2017-08-12Laws2017-08-1263Article1110.3390/laws6030011http://www.mdpi.com/2075-471X/6/3/11Laws, Vol. 6, Pages 10: Protection for Privacy under the United Nations Convention on the Rights of Persons with Disabilitieshttp://www.mdpi.com/2075-471X/6/3/10
Article 22 of the Convention on the Rights of Persons with Disabilities (CRPD) protects personal and family privacy and reputation. This paper examines the antecedents of the CRPD privacy article in other international instruments and selected domestic law. It traces the history of the article through the deliberations that led up to the final version of the CRPD, which has now been ratified by 173 nations. It analyzes the text of the article and discusses its limited administrative and judicial applications. Finally, it describes the article’s place in current thinking about disability human rights.Laws, Vol. 6, Pages 10: Protection for Privacy under the United Nations Convention on the Rights of Persons with Disabilities

Article 22 of the Convention on the Rights of Persons with Disabilities (CRPD) protects personal and family privacy and reputation. This paper examines the antecedents of the CRPD privacy article in other international instruments and selected domestic law. It traces the history of the article through the deliberations that led up to the final version of the CRPD, which has now been ratified by 173 nations. It analyzes the text of the article and discusses its limited administrative and judicial applications. Finally, it describes the article’s place in current thinking about disability human rights.

]]>Protection for Privacy under the United Nations Convention on the Rights of Persons with DisabilitiesMark Weberdoi: 10.3390/laws6030010Laws2017-08-07Laws2017-08-0763Article1010.3390/laws6030010http://www.mdpi.com/2075-471X/6/3/10Laws, Vol. 6, Pages 9: Drawing the Line: Disability, Genetic Intervention and Bioethicshttp://www.mdpi.com/2075-471X/6/3/9
Meteoric scientific advances in genetic technologies with the potential for human gene editing intervention pose tremendous legal, medical, social, ethical and moral issues for society as a whole. Persons with disabilities in particular have a significant stake in determining how these technologies are governed at the international, domestic and individual levels in the future. However, the law cannot easily keep up with the rate of scientific progression. This paper aims to posit a methodology of reform, based on a core value of human dignity, as the optimal course of action to ensure that the interests of persons with disabilities, other possibly marginalised groups, and the scientific community, are balanced fairly. The paper critically analyses the current law and varying bioethical perspectives to ultimately conclude that a clear principled approach toward open discussion and consensus is of paramount importance to have any chance of devising an effective regulatory regime over human gene editing technology.Laws, Vol. 6, Pages 9: Drawing the Line: Disability, Genetic Intervention and Bioethics

Meteoric scientific advances in genetic technologies with the potential for human gene editing intervention pose tremendous legal, medical, social, ethical and moral issues for society as a whole. Persons with disabilities in particular have a significant stake in determining how these technologies are governed at the international, domestic and individual levels in the future. However, the law cannot easily keep up with the rate of scientific progression. This paper aims to posit a methodology of reform, based on a core value of human dignity, as the optimal course of action to ensure that the interests of persons with disabilities, other possibly marginalised groups, and the scientific community, are balanced fairly. The paper critically analyses the current law and varying bioethical perspectives to ultimately conclude that a clear principled approach toward open discussion and consensus is of paramount importance to have any chance of devising an effective regulatory regime over human gene editing technology.

]]>Drawing the Line: Disability, Genetic Intervention and BioethicsAdam Contidoi: 10.3390/laws6030009Laws2017-07-17Laws2017-07-1763Article910.3390/laws6030009http://www.mdpi.com/2075-471X/6/3/9Laws, Vol. 6, Pages 8: Victims of Violence: The Forced Sterilisation of Women and Girls with Disabilities in Australiahttp://www.mdpi.com/2075-471X/6/3/8
This paper considers the issue of forced sterilisation of women and girls with disabilities in the Australian context. It examines the history and ideological underpinning of this practice, the current Australian regime and the present rationales for court or tribunal authorisation of a sterilising procedure. It is by no means an exhaustive coverage, but aims to critically analyse the current system and make recommendations for reform of Australian law and policy. This paper ultimately concludes that the practice of forced sterilisation in Australia should be criminalised, save for exceptional circumstances.Laws, Vol. 6, Pages 8: Victims of Violence: The Forced Sterilisation of Women and Girls with Disabilities in Australia

This paper considers the issue of forced sterilisation of women and girls with disabilities in the Australian context. It examines the history and ideological underpinning of this practice, the current Australian regime and the present rationales for court or tribunal authorisation of a sterilising procedure. It is by no means an exhaustive coverage, but aims to critically analyse the current system and make recommendations for reform of Australian law and policy. This paper ultimately concludes that the practice of forced sterilisation in Australia should be criminalised, save for exceptional circumstances.

]]>Victims of Violence: The Forced Sterilisation of Women and Girls with Disabilities in AustraliaLaura Elliottdoi: 10.3390/laws6030008Laws2017-07-04Laws2017-07-0463Article810.3390/laws6030008http://www.mdpi.com/2075-471X/6/3/8Laws, Vol. 6, Pages 7: Human Rights and Social Justicehttp://www.mdpi.com/2075-471X/6/2/7
This paper addresses the question of the normative domains of human rights and social justice. Today, the dominant view in political philosophy is that they occupy largely distinct spheres, with social justice being a set of stronger egalitarian norms and human rights functioning as baseline protections against common threats posed by states to the general interests of persons subjected to them. Reflecting on current human rights practice and discourse, this paper develops a reconstructed normative model of social justice and human rights as nested membership norms in political societies. By connecting membership to processes of political legitimacy, human rights are conceptualized as increasingly functioning as the language of contesting and reforming barriers of exclusion to that status. This leads to an understanding of the possible content of human rights that is dynamic and relational, bringing it closer in line with the egalitarianism of social justice.Laws, Vol. 6, Pages 7: Human Rights and Social Justice

This paper addresses the question of the normative domains of human rights and social justice. Today, the dominant view in political philosophy is that they occupy largely distinct spheres, with social justice being a set of stronger egalitarian norms and human rights functioning as baseline protections against common threats posed by states to the general interests of persons subjected to them. Reflecting on current human rights practice and discourse, this paper develops a reconstructed normative model of social justice and human rights as nested membership norms in political societies. By connecting membership to processes of political legitimacy, human rights are conceptualized as increasingly functioning as the language of contesting and reforming barriers of exclusion to that status. This leads to an understanding of the possible content of human rights that is dynamic and relational, bringing it closer in line with the egalitarianism of social justice.

]]>Human Rights and Social JusticeNeil Hibbertdoi: 10.3390/laws6020007Laws2017-06-16Laws2017-06-1662Article710.3390/laws6020007http://www.mdpi.com/2075-471X/6/2/7Laws, Vol. 6, Pages 6: A New Approach to Abortion Informed Consent Laws: How An Evidence Law Framework Can Clarify Casey’s Truthful, Non-Misleading Standardhttp://www.mdpi.com/2075-471X/6/2/6
United States Supreme Court doctrine has, for a quarter century, permitted regulations designed—through facts or nudges, but not force—to persuade pregnant women to choose childbirth over abortion. States have increasingly exceeded the bounds of this persuasive power by subjecting women to emotive and potentially distressing ‘information’ like real-time fetal images, heart beat recordings, or state-mandated directives by their doctors that abortion would “terminate the life of a whole, separate, unique, living human being.” This article advances a novel approach to informed consent in abortion that draws on established principles in the U.S. Federal Rules of Evidence (FRE). Evidentiary rules requiring “completeness”, exempting “common knowledge”, and prohibiting evidence that is “more prejudicial than probative” provide a sounder way for courts to determine which informed consent regulations on abortion mislead and demean a woman in ways that violate her constitutional right to make the ultimate decision about whether to continue a pregnancy. This evidence law framework would resolve conflicts between a woman’s right and the state’s interest by forbidding mandatory disclosures of incomplete, unnecessary, and emotionally charged information designed to promote childbirth over abortion.Laws, Vol. 6, Pages 6: A New Approach to Abortion Informed Consent Laws: How An Evidence Law Framework Can Clarify Casey’s Truthful, Non-Misleading Standard

United States Supreme Court doctrine has, for a quarter century, permitted regulations designed—through facts or nudges, but not force—to persuade pregnant women to choose childbirth over abortion. States have increasingly exceeded the bounds of this persuasive power by subjecting women to emotive and potentially distressing ‘information’ like real-time fetal images, heart beat recordings, or state-mandated directives by their doctors that abortion would “terminate the life of a whole, separate, unique, living human being.” This article advances a novel approach to informed consent in abortion that draws on established principles in the U.S. Federal Rules of Evidence (FRE). Evidentiary rules requiring “completeness”, exempting “common knowledge”, and prohibiting evidence that is “more prejudicial than probative” provide a sounder way for courts to determine which informed consent regulations on abortion mislead and demean a woman in ways that violate her constitutional right to make the ultimate decision about whether to continue a pregnancy. This evidence law framework would resolve conflicts between a woman’s right and the state’s interest by forbidding mandatory disclosures of incomplete, unnecessary, and emotionally charged information designed to promote childbirth over abortion.

]]>A New Approach to Abortion Informed Consent Laws: How An Evidence Law Framework Can Clarify Casey’s Truthful, Non-Misleading StandardVeneeta Jaswaldoi: 10.3390/laws6020006Laws2017-04-01Laws2017-04-0162Article610.3390/laws6020006http://www.mdpi.com/2075-471X/6/2/6Laws, Vol. 6, Pages 5: Prospects for a Sports Ombudsman in Canadahttp://www.mdpi.com/2075-471X/6/1/5
This article examines the potential of using an Ombudsman to resolve sports related disputes, and further researches underway in Canada to incorporate an Ombudsman scheme. The article looks at the various types of Ombudsmen, the existing Ombudsman or Ombudsman-like dispute resolution schemes concerning sport, and provides guidance on the establishment of a nation-wide scheme for Canada. The article finds that the addition of a sports Ombudsman to ADR services already provided by the Sport Dispute Resolution Centre of Canada would be of benefit to athletes and the sports community.Laws, Vol. 6, Pages 5: Prospects for a Sports Ombudsman in Canada

This article examines the potential of using an Ombudsman to resolve sports related disputes, and further researches underway in Canada to incorporate an Ombudsman scheme. The article looks at the various types of Ombudsmen, the existing Ombudsman or Ombudsman-like dispute resolution schemes concerning sport, and provides guidance on the establishment of a nation-wide scheme for Canada. The article finds that the addition of a sports Ombudsman to ADR services already provided by the Sport Dispute Resolution Centre of Canada would be of benefit to athletes and the sports community.

]]>Prospects for a Sports Ombudsman in CanadaFrank Fowliedoi: 10.3390/laws6010005Laws2017-03-14Laws2017-03-1461Article510.3390/laws6010005http://www.mdpi.com/2075-471X/6/1/5Laws, Vol. 6, Pages 4: Enfranchised Minors: Women as People in the Middle East after the 2011 Arab Uprisingshttp://www.mdpi.com/2075-471X/6/1/4
The civic status of female citizens in the Middle East and North Africa (MENA) region is conceptualized as “enfranchised minorhood” which reflects the confined position of adult women as legal minors under the trusteeship of male kin in family law, criminal law, and nationality law. During and in the aftermath of the Uprisings that erupted throughout MENA in 2011, female lawyers in Morocco, Lebanon, and Kuwait allied with women’s groups and pressured for reforms in patriarchal state laws. By 2015, reforms were manifest in criminal law; incremental in family law; and absent in nationality law. Theoretical conclusions based on comparative analysis of societal pressures in three states indicate that long historical trajectories are imperative for substantiating the expansion of female citizenship following the 2011 Uprisings. Additionally, the civic status of women in the MENA region is being strengthened under authoritarian monarchical rule in Kuwait and Morocco. A third finding is that pressures for reform have more visible reverberations in legal spheres with a clerical imprint such as family law and criminal law, while strengthened pressures in a secular legal sphere such as nationality law have been opposed more forcefully five years after the Uprisings.Laws, Vol. 6, Pages 4: Enfranchised Minors: Women as People in the Middle East after the 2011 Arab Uprisings

The civic status of female citizens in the Middle East and North Africa (MENA) region is conceptualized as “enfranchised minorhood” which reflects the confined position of adult women as legal minors under the trusteeship of male kin in family law, criminal law, and nationality law. During and in the aftermath of the Uprisings that erupted throughout MENA in 2011, female lawyers in Morocco, Lebanon, and Kuwait allied with women’s groups and pressured for reforms in patriarchal state laws. By 2015, reforms were manifest in criminal law; incremental in family law; and absent in nationality law. Theoretical conclusions based on comparative analysis of societal pressures in three states indicate that long historical trajectories are imperative for substantiating the expansion of female citizenship following the 2011 Uprisings. Additionally, the civic status of women in the MENA region is being strengthened under authoritarian monarchical rule in Kuwait and Morocco. A third finding is that pressures for reform have more visible reverberations in legal spheres with a clerical imprint such as family law and criminal law, while strengthened pressures in a secular legal sphere such as nationality law have been opposed more forcefully five years after the Uprisings.

]]>Enfranchised Minors: Women as People in the Middle East after the 2011 Arab UprisingsRania Maktabidoi: 10.3390/laws6010004Laws2017-03-10Laws2017-03-1061Article410.3390/laws6010004http://www.mdpi.com/2075-471X/6/1/4Laws, Vol. 6, Pages 3: Online Shaming and the Right to Privacyhttp://www.mdpi.com/2075-471X/6/1/3
This paper advances privacy theory through examination of online shaming, focusing in particular on persecution by internet mobs. While shaming is nothing new, the technology used for modern shaming is new and evolving, making it a revealing lens through which to analyze points of analytical friction within and between traditional conceptions of privacy. To that end, this paper first explores the narrative and structure of online shaming, identifying broad categories of shaming of vigilantism, bullying, bigotry and gossiping, which are then used throughout the paper to evaluate different angles to the privacy problems raised. Second, this paper examines shaming through three dominant debates concerning privacy—privacy’s link with dignity, the right to privacy in public places and the social dimension of privacy. Certain themes emerged from this analysis. A common feature of online shaming is public humiliation. A challenge is to differentiate between a humbling (rightly knocking someone down a peg for a social transgression) and a humiliation that is an affront to dignity (wrongly knocking someone down a peg). In addition, the privacy concern of shamed individuals is not necessarily about intrusion on seclusion or revelation of embarrassing information, but rather about the disruption in their ability to continue to participate in online spaces free from attack. The privacy interest therefore becomes more about enabling participation in social spaces, enabling connections and relationships to form, and about enabling identity-making. Public humiliation through shaming can disrupt all of these inviting closer scrutiny concerning how law can be used as an enabling rather than secluding tool.Laws, Vol. 6, Pages 3: Online Shaming and the Right to Privacy

This paper advances privacy theory through examination of online shaming, focusing in particular on persecution by internet mobs. While shaming is nothing new, the technology used for modern shaming is new and evolving, making it a revealing lens through which to analyze points of analytical friction within and between traditional conceptions of privacy. To that end, this paper first explores the narrative and structure of online shaming, identifying broad categories of shaming of vigilantism, bullying, bigotry and gossiping, which are then used throughout the paper to evaluate different angles to the privacy problems raised. Second, this paper examines shaming through three dominant debates concerning privacy—privacy’s link with dignity, the right to privacy in public places and the social dimension of privacy. Certain themes emerged from this analysis. A common feature of online shaming is public humiliation. A challenge is to differentiate between a humbling (rightly knocking someone down a peg for a social transgression) and a humiliation that is an affront to dignity (wrongly knocking someone down a peg). In addition, the privacy concern of shamed individuals is not necessarily about intrusion on seclusion or revelation of embarrassing information, but rather about the disruption in their ability to continue to participate in online spaces free from attack. The privacy interest therefore becomes more about enabling participation in social spaces, enabling connections and relationships to form, and about enabling identity-making. Public humiliation through shaming can disrupt all of these inviting closer scrutiny concerning how law can be used as an enabling rather than secluding tool.

]]>Online Shaming and the Right to PrivacyEmily Laidlawdoi: 10.3390/laws6010003Laws2017-02-08Laws2017-02-0861Article310.3390/laws6010003http://www.mdpi.com/2075-471X/6/1/3Laws, Vol. 6, Pages 2: Collegiality, Therapy and Mediation—The Contribution of Experts in Swedish Mental Health Lawhttp://www.mdpi.com/2075-471X/6/1/2
Independent experts serve a vital role in how the human rights of patients are protected in mental health law. This article investigates the contribution of court-appointed psychiatrists (APs) in civil commitment court hearings. Analysis is based on 12 court hearings that were audiotaped. Supplementary informal interviews with participants were also conducted. Data were analysed through a combination of rhetoric analysis and discourse analysis. Analysis of the hearings reveals that APs do not fulfil their function to critically investigate treating psychiatrists’ (CPs) recommendations that patients meet commitment criteria. They typically do not ask any questions from CPs, and the few questions that are asked do not cast light on the legal issues at stake. To further understand the role of APs, their communication has been analyzed in terms of four interpretative repertoires: collegial, disclosing, therapeutic and mediating. In conclusion, the human rights of patients subjected to involuntary commitment might be at risk when therapeutic concerns are built into the process. The specific Swedish model where APs deliver their own assessment about whether commitment criteria are met may be counterproductive. This argument possibly extends to the role of medical members in mental health tribunals in the United Kingdom, Australia and New Zealand.Laws, Vol. 6, Pages 2: Collegiality, Therapy and Mediation—The Contribution of Experts in Swedish Mental Health Law

Independent experts serve a vital role in how the human rights of patients are protected in mental health law. This article investigates the contribution of court-appointed psychiatrists (APs) in civil commitment court hearings. Analysis is based on 12 court hearings that were audiotaped. Supplementary informal interviews with participants were also conducted. Data were analysed through a combination of rhetoric analysis and discourse analysis. Analysis of the hearings reveals that APs do not fulfil their function to critically investigate treating psychiatrists’ (CPs) recommendations that patients meet commitment criteria. They typically do not ask any questions from CPs, and the few questions that are asked do not cast light on the legal issues at stake. To further understand the role of APs, their communication has been analyzed in terms of four interpretative repertoires: collegial, disclosing, therapeutic and mediating. In conclusion, the human rights of patients subjected to involuntary commitment might be at risk when therapeutic concerns are built into the process. The specific Swedish model where APs deliver their own assessment about whether commitment criteria are met may be counterproductive. This argument possibly extends to the role of medical members in mental health tribunals in the United Kingdom, Australia and New Zealand.

]]>Collegiality, Therapy and Mediation—The Contribution of Experts in Swedish Mental Health LawStefan SjöströmMaritha JacobssonAnna Hollanderdoi: 10.3390/laws6010002Laws2017-01-17Laws2017-01-1761Article210.3390/laws6010002http://www.mdpi.com/2075-471X/6/1/2Laws, Vol. 6, Pages 1: Acknowledgement to Reviewers of Laws in 2016http://www.mdpi.com/2075-471X/6/1/1
The editors of Laws would like to express their sincere gratitude to the following reviewers for assessing manuscripts in 2016.[...]Laws, Vol. 6, Pages 1: Acknowledgement to Reviewers of Laws in 2016

The editors of Laws would like to express their sincere gratitude to the following reviewers for assessing manuscripts in 2016.[...]

]]>Acknowledgement to Reviewers of Laws in 2016 Laws Editorial Officedoi: 10.3390/laws6010001Laws2017-01-10Laws2017-01-1061Editorial110.3390/laws6010001http://www.mdpi.com/2075-471X/6/1/1Laws, Vol. 5, Pages 43: Assessing the UN High-Level Panel on Access to Medicines Report in Light of the Right to Healthhttp://www.mdpi.com/2075-471X/5/4/43
Access to medicines is the lynchpin to realizing a range of human rights, public health and development imperatives. However, without strong policy action to increase access to affordable medicines, there is little hope of achieving the Sustainable Development Goals or of realizing the human right to health. Access to medicines is a fundamental element of the right to health, and the majority of states are bound by core obligations in this regard. Accordingly, states must ensure that this critical human rights, public health and development interest is appropriately prioritized against inadequate resource allocations and competing private or trade interests. This is an imperative which we have argued should have framed the deliberations of the UN High Level Panel on Access to Medicines, convened to propose solutions to the “policy incoherence” between international human rights, trade rules and public health that is impeding access to medicines and the right to health for millions. In this article we explore interpretations in international human rights law regarding state duties towards medicines that should have guided these deliberations, and which were presented by the first author in a submission to the panel. We argue that at least two clear right to health duties support the High Level Panel’s recommendations: (1) the duty to prevent unreasonably high costs for medicines from denying large segments of the population their rights to health; and (2) the core obligation to provide essential medicines. Consequently, we explore three areas of action implied by these duties: (1) consistent implementation of human rights impact assessment; (2) institutionalizing the Agreement on Trade-Related Intellectual Property Rights (TRIPS) flexibilities in law and policy; (3) making permanent the waiver of TRIPS for least developed countries (LDC), and waiving the application of TRIPS to essential medicines in low and middle-income countries. Finally, we assess the extent to which the recommendations made by the Panel’s final report comply with these duties and accordingly with the right to health.Laws, Vol. 5, Pages 43: Assessing the UN High-Level Panel on Access to Medicines Report in Light of the Right to Health

Access to medicines is the lynchpin to realizing a range of human rights, public health and development imperatives. However, without strong policy action to increase access to affordable medicines, there is little hope of achieving the Sustainable Development Goals or of realizing the human right to health. Access to medicines is a fundamental element of the right to health, and the majority of states are bound by core obligations in this regard. Accordingly, states must ensure that this critical human rights, public health and development interest is appropriately prioritized against inadequate resource allocations and competing private or trade interests. This is an imperative which we have argued should have framed the deliberations of the UN High Level Panel on Access to Medicines, convened to propose solutions to the “policy incoherence” between international human rights, trade rules and public health that is impeding access to medicines and the right to health for millions. In this article we explore interpretations in international human rights law regarding state duties towards medicines that should have guided these deliberations, and which were presented by the first author in a submission to the panel. We argue that at least two clear right to health duties support the High Level Panel’s recommendations: (1) the duty to prevent unreasonably high costs for medicines from denying large segments of the population their rights to health; and (2) the core obligation to provide essential medicines. Consequently, we explore three areas of action implied by these duties: (1) consistent implementation of human rights impact assessment; (2) institutionalizing the Agreement on Trade-Related Intellectual Property Rights (TRIPS) flexibilities in law and policy; (3) making permanent the waiver of TRIPS for least developed countries (LDC), and waiving the application of TRIPS to essential medicines in low and middle-income countries. Finally, we assess the extent to which the recommendations made by the Panel’s final report comply with these duties and accordingly with the right to health.

]]>Assessing the UN High-Level Panel on Access to Medicines Report in Light of the Right to HealthLisa FormanIfrah AbdillahiJeannie Samueldoi: 10.3390/laws5040043Laws2016-11-22Laws2016-11-2254Article4310.3390/laws5040043http://www.mdpi.com/2075-471X/5/4/43Laws, Vol. 5, Pages 42: What Has Limited the Impact of UK Disability Equality Law on Social Justice?http://www.mdpi.com/2075-471X/5/4/42
The literature indicates that disabled workers in the UK experience more social injustice than UK workers as a whole, including in relation to employment rates and wage levels. Drawing on the author’s 2015 qualitative study of 265 disabled workers, this paper considers how successful the Equality Act 2010 Reasonable Adjustments Duty has been in tackling this social injustice. It finds that in the context of the “flexible” labour force (consisting of insecure jobs), and the “reformed” welfare state, the Reasonable Adjustments Duty is ill-equipped to achieve its original purpose of reducing the substantial disadvantage that disabled workers face. As regards the “flexible” labour force, there appeared, for example, to be a strong reluctance to make reasonable adjustments for workers on zero hours contracts; while, as regards the impact of welfare reform, fear of being dismissed and facing benefit sanctions discouraged zero hours workers from pushing for adjustments which had been refused. The paper goes on to suggest a possible wording for a strengthened Reasonable Adjustments Duty. It concludes, however, that, without changes to unfair dismissal, and other labour laws, to address the wider iniquities of the flexible labour market, a strengthened duty will not be able to prevent a long term increase in social injustice for disabled workers.Laws, Vol. 5, Pages 42: What Has Limited the Impact of UK Disability Equality Law on Social Justice?

The literature indicates that disabled workers in the UK experience more social injustice than UK workers as a whole, including in relation to employment rates and wage levels. Drawing on the author’s 2015 qualitative study of 265 disabled workers, this paper considers how successful the Equality Act 2010 Reasonable Adjustments Duty has been in tackling this social injustice. It finds that in the context of the “flexible” labour force (consisting of insecure jobs), and the “reformed” welfare state, the Reasonable Adjustments Duty is ill-equipped to achieve its original purpose of reducing the substantial disadvantage that disabled workers face. As regards the “flexible” labour force, there appeared, for example, to be a strong reluctance to make reasonable adjustments for workers on zero hours contracts; while, as regards the impact of welfare reform, fear of being dismissed and facing benefit sanctions discouraged zero hours workers from pushing for adjustments which had been refused. The paper goes on to suggest a possible wording for a strengthened Reasonable Adjustments Duty. It concludes, however, that, without changes to unfair dismissal, and other labour laws, to address the wider iniquities of the flexible labour market, a strengthened duty will not be able to prevent a long term increase in social injustice for disabled workers.

]]>What Has Limited the Impact of UK Disability Equality Law on Social Justice?Rupert Harwooddoi: 10.3390/laws5040042Laws2016-11-09Laws2016-11-0954Article4210.3390/laws5040042http://www.mdpi.com/2075-471X/5/4/42Laws, Vol. 5, Pages 41: Liberal or Conservative? Genetic Rhetoric, Disability, and Human Species Modificationhttp://www.mdpi.com/2075-471X/5/4/41
A certain political rhetoric is implicit and sometimes explicit in the advocacy of human genetic modification (indicating here both the enhancement and the prevention of disability). The main claim is that it belongs to a liberal tradition. From a perspective supplied by the history and philosophy of science rather than by ethics, the content of that claim is examined to see if such a self-description is justified. The techniques are analyzed by which apparently liberal arguments get to be presented as “reasonable” in a juridical sense that draws on theories of law and rhetoric.Laws, Vol. 5, Pages 41: Liberal or Conservative? Genetic Rhetoric, Disability, and Human Species Modification

A certain political rhetoric is implicit and sometimes explicit in the advocacy of human genetic modification (indicating here both the enhancement and the prevention of disability). The main claim is that it belongs to a liberal tradition. From a perspective supplied by the history and philosophy of science rather than by ethics, the content of that claim is examined to see if such a self-description is justified. The techniques are analyzed by which apparently liberal arguments get to be presented as “reasonable” in a juridical sense that draws on theories of law and rhetoric.

]]>Liberal or Conservative? Genetic Rhetoric, Disability, and Human Species ModificationChristopher Goodeydoi: 10.3390/laws5040041Laws2016-11-03Laws2016-11-0354Article4110.3390/laws5040041http://www.mdpi.com/2075-471X/5/4/41Laws, Vol. 5, Pages 40: Copyright, Culture, and Community in Virtual Worldshttp://www.mdpi.com/2075-471X/5/4/40
Communities that interact on-line through computer games and other virtual worlds are mediated by the audiovisual content of the game interface. Much of this content is subject to copyright law, which confers on the copyright owner the legal right to prevent certain unauthorized uses of the content. Such exclusive rights impose a limiting factor on the development of communities that are situated around the interface content, as the rights, privileges, and exceptions associated with copyright generally tend to disregard the cultural significance of copyrighted content. This limiting effect of copyright is well illustrated by examination of the copying of content by virtual diaspora communities such as that formed around the game Uru: Ages of Myst; thus, the opportunity for on-line communities to legally access the graphical elements on which those communities are built is fraught with potential legal liability. This presents the reciprocal situation from efforts to protect the cultural properties of indigenous communities as traditional knowledge. Reconsideration of current copyright law would be required in order to accommodate the cohesion of on-line communities and related cultural uses of copyrighted content.Laws, Vol. 5, Pages 40: Copyright, Culture, and Community in Virtual Worlds

Communities that interact on-line through computer games and other virtual worlds are mediated by the audiovisual content of the game interface. Much of this content is subject to copyright law, which confers on the copyright owner the legal right to prevent certain unauthorized uses of the content. Such exclusive rights impose a limiting factor on the development of communities that are situated around the interface content, as the rights, privileges, and exceptions associated with copyright generally tend to disregard the cultural significance of copyrighted content. This limiting effect of copyright is well illustrated by examination of the copying of content by virtual diaspora communities such as that formed around the game Uru: Ages of Myst; thus, the opportunity for on-line communities to legally access the graphical elements on which those communities are built is fraught with potential legal liability. This presents the reciprocal situation from efforts to protect the cultural properties of indigenous communities as traditional knowledge. Reconsideration of current copyright law would be required in order to accommodate the cohesion of on-line communities and related cultural uses of copyrighted content.

]]>Copyright, Culture, and Community in Virtual WorldsDan Burkdoi: 10.3390/laws5040040Laws2016-11-02Laws2016-11-0254Article4010.3390/laws5040040http://www.mdpi.com/2075-471X/5/4/40Laws, Vol. 5, Pages 39: Precedents, Patterns and Puzzles: Feminist Reflections on the First Women Lawyershttp://www.mdpi.com/2075-471X/5/4/39
This paper initially examines the historical precedents established by some of the first women who entered the “gentleman’s profession” of law in different jurisdictions, as well as the biographical patterns that shaped some women’s ambitions to enter the legal professions. The paper then uses feminist methods and theories to interpret “puzzles that remain unsolved” about early women lawyers, focusing especially on two issues. One puzzle is the repeated claims on the part of many of these early women lawyers that they were “lawyers”, and not “women lawyers”, even as they experienced exclusionary practices and discrimination on the part of male lawyers and judges—a puzzle that suggests how professional culture required women lawyers to conform to existing patterns in order to succeed. A second puzzle relates to the public voices of early women lawyers, which tended to suppress disappointments, difficulties and discriminatory practices. In this context, feminist theories suggest a need to be attentive to the “silences” in women’s stories, including the stories of the lives of early women lawyers. Moreover, these insights may have continuing relevance for contemporary women lawyers because it is at least arguable that, while there have been changes in women’s experiences, there has been very little transformation in their work status in relation to men.Laws, Vol. 5, Pages 39: Precedents, Patterns and Puzzles: Feminist Reflections on the First Women Lawyers

This paper initially examines the historical precedents established by some of the first women who entered the “gentleman’s profession” of law in different jurisdictions, as well as the biographical patterns that shaped some women’s ambitions to enter the legal professions. The paper then uses feminist methods and theories to interpret “puzzles that remain unsolved” about early women lawyers, focusing especially on two issues. One puzzle is the repeated claims on the part of many of these early women lawyers that they were “lawyers”, and not “women lawyers”, even as they experienced exclusionary practices and discrimination on the part of male lawyers and judges—a puzzle that suggests how professional culture required women lawyers to conform to existing patterns in order to succeed. A second puzzle relates to the public voices of early women lawyers, which tended to suppress disappointments, difficulties and discriminatory practices. In this context, feminist theories suggest a need to be attentive to the “silences” in women’s stories, including the stories of the lives of early women lawyers. Moreover, these insights may have continuing relevance for contemporary women lawyers because it is at least arguable that, while there have been changes in women’s experiences, there has been very little transformation in their work status in relation to men.

]]>Precedents, Patterns and Puzzles: Feminist Reflections on the First Women LawyersMary Mossmandoi: 10.3390/laws5040039Laws2016-10-18Laws2016-10-1854Article3910.3390/laws5040039http://www.mdpi.com/2075-471X/5/4/39Laws, Vol. 5, Pages 38: Harmonisation and Cross-Fertilisation of Socio-Economic Rights in the Human Rights Treaty Bodies: Disability and the Reasonableness Review Case Studyhttp://www.mdpi.com/2075-471X/5/4/38
In light of the recent adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) and the Optional Protocol to the Convention on the Rights of Persons with Disabilities (OP-CRPD), there is a necessity for harmonisation among the treaty bodies, particularly in the area of socio-economic rights. The equality norm in the CRPD, including the duty to reasonably accommodate, is an important facilitator of socio-economic rights. This article sets forth the opportunities for cross-fertilisation of socio-economic rights, and disability rights in particular, at the level of international human rights law and beyond, as well as the potential that exists for social change at the domestic level. The CRPD Committee and the United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) will undertake the task of assessing measures adopted by States related to alleged violations under the optional protocols and will determine compliance with treaty obligations under the State reporting procedure. In that regard, a framework of “reasonableness review” is proposed, which could provide the opportunity to merge individual rights’ violations with broader issues of socio-economic inequalities and could also lead to coherent implementation of the normative content of socio-economic rights at the domestic level.Laws, Vol. 5, Pages 38: Harmonisation and Cross-Fertilisation of Socio-Economic Rights in the Human Rights Treaty Bodies: Disability and the Reasonableness Review Case Study

In light of the recent adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) and the Optional Protocol to the Convention on the Rights of Persons with Disabilities (OP-CRPD), there is a necessity for harmonisation among the treaty bodies, particularly in the area of socio-economic rights. The equality norm in the CRPD, including the duty to reasonably accommodate, is an important facilitator of socio-economic rights. This article sets forth the opportunities for cross-fertilisation of socio-economic rights, and disability rights in particular, at the level of international human rights law and beyond, as well as the potential that exists for social change at the domestic level. The CRPD Committee and the United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) will undertake the task of assessing measures adopted by States related to alleged violations under the optional protocols and will determine compliance with treaty obligations under the State reporting procedure. In that regard, a framework of “reasonableness review” is proposed, which could provide the opportunity to merge individual rights’ violations with broader issues of socio-economic inequalities and could also lead to coherent implementation of the normative content of socio-economic rights at the domestic level.

]]>Harmonisation and Cross-Fertilisation of Socio-Economic Rights in the Human Rights Treaty Bodies: Disability and the Reasonableness Review Case StudyAndrea Broderickdoi: 10.3390/laws5040038Laws2016-09-25Laws2016-09-2554Article3810.3390/laws5040038http://www.mdpi.com/2075-471X/5/4/38Laws, Vol. 5, Pages 37: The Discussions around Precision Genetic Engineering: Role of and Impact on Disabled Peoplehttp://www.mdpi.com/2075-471X/5/3/37
Genetic researchers are advancing in their abilities to extract precise genetic information from biological and human entities bringing genetic research steps closer to accurately modifying genes of biological entities, including that of humans. In this analytical essay, we focus on the discussions about precision genetic intervention that have taken place since March 2015 as they pertain to disabled people. We focus on two areas; one being the role of disabled people in the recent gene editing discussions and the second being the utility of existing legal instruments. Within our first focus we address the following questions: (a) What is the visibility of disabled people in the gene-editing discussions that have taken place since March 2015? (b) What has been the impact of those discussions on disabled people? (c) Were social problems which disabled people face taken into account in those discussions; (d) How does the reality of engagement with disabled people in these discussions fit with science, technology and innovation governance discourses that ask for more stakeholder, bottom up and anticipatory involvement? Within our second focus we address the following questions: (a) What is the utility of the United Nations Convention on the Right of Persons with Disabilities (UNCRPD); and (b) What is the utility of existing legal instruments covering genetic interventions: for preventing negative social consequences of genetic engineering developments for disabled people. We argue that (a) the genetic engineering debates since March 2015 have portrayed disabled people dominantly through a medical lens; (b) that the governance of science, technology and innovation of genetic engineering including anticipatory governance and responsible innovation discourses has not yet engaged with the social impact of gene editing on disabled people; (c) that few scholars that focus on the social situation of disabled people are visible in the governance discussions of gene editing; and (d) that the utility of the UNCRPD and the investigated genetic-related legal instruments and international agreements to protect disabled people from negative consequences coming out of the gene editing discussions is unclear at the least.Laws, Vol. 5, Pages 37: The Discussions around Precision Genetic Engineering: Role of and Impact on Disabled People

Genetic researchers are advancing in their abilities to extract precise genetic information from biological and human entities bringing genetic research steps closer to accurately modifying genes of biological entities, including that of humans. In this analytical essay, we focus on the discussions about precision genetic intervention that have taken place since March 2015 as they pertain to disabled people. We focus on two areas; one being the role of disabled people in the recent gene editing discussions and the second being the utility of existing legal instruments. Within our first focus we address the following questions: (a) What is the visibility of disabled people in the gene-editing discussions that have taken place since March 2015? (b) What has been the impact of those discussions on disabled people? (c) Were social problems which disabled people face taken into account in those discussions; (d) How does the reality of engagement with disabled people in these discussions fit with science, technology and innovation governance discourses that ask for more stakeholder, bottom up and anticipatory involvement? Within our second focus we address the following questions: (a) What is the utility of the United Nations Convention on the Right of Persons with Disabilities (UNCRPD); and (b) What is the utility of existing legal instruments covering genetic interventions: for preventing negative social consequences of genetic engineering developments for disabled people. We argue that (a) the genetic engineering debates since March 2015 have portrayed disabled people dominantly through a medical lens; (b) that the governance of science, technology and innovation of genetic engineering including anticipatory governance and responsible innovation discourses has not yet engaged with the social impact of gene editing on disabled people; (c) that few scholars that focus on the social situation of disabled people are visible in the governance discussions of gene editing; and (d) that the utility of the UNCRPD and the investigated genetic-related legal instruments and international agreements to protect disabled people from negative consequences coming out of the gene editing discussions is unclear at the least.

]]>The Discussions around Precision Genetic Engineering: Role of and Impact on Disabled PeopleGregor WolbringLucy Diepdoi: 10.3390/laws5030037Laws2016-09-09Laws2016-09-0953Article3710.3390/laws5030037http://www.mdpi.com/2075-471X/5/3/37Laws, Vol. 5, Pages 36: Precision Medicine and Advancing Genetic Technologies—Disability and Human Rights Perspectiveshttp://www.mdpi.com/2075-471X/5/3/36
Scientific and technological developments are propelling genetics and genetic technologies into the public sphere. Scientific and technological innovation is becoming more refined, resulting in an increase in the availability and use of genetic testing, and other cutting edge genetic technologies, including gene editing. These genetic advances not only signal a growing trend towards precision medicine, but also provoke consideration of the protection of genetic information as an emerging human rights concern. Particular ethical and legal issues arise from a disability perspective, including the potential for discrimination and privacy violations. In consideration of the intersection of genetics and disability, this article highlights the significant concerns raised as genetic science and technology advances, and the consequences for disability rights, particularly the core concepts of non-discrimination, and respect for diversity and difference. On examining international human rights perspectives, it looks particularly at the UN Convention on the Rights of Persons with Disabilities and how it may be used to guide best practice in this area. With an acknowledgement of historical abuses of genetic science, this article highlights the need to maintain caution as to the potential consequences of advancing genetic technologies on persons with disabilities and indeed on society as a whole.Laws, Vol. 5, Pages 36: Precision Medicine and Advancing Genetic Technologies—Disability and Human Rights Perspectives

Scientific and technological developments are propelling genetics and genetic technologies into the public sphere. Scientific and technological innovation is becoming more refined, resulting in an increase in the availability and use of genetic testing, and other cutting edge genetic technologies, including gene editing. These genetic advances not only signal a growing trend towards precision medicine, but also provoke consideration of the protection of genetic information as an emerging human rights concern. Particular ethical and legal issues arise from a disability perspective, including the potential for discrimination and privacy violations. In consideration of the intersection of genetics and disability, this article highlights the significant concerns raised as genetic science and technology advances, and the consequences for disability rights, particularly the core concepts of non-discrimination, and respect for diversity and difference. On examining international human rights perspectives, it looks particularly at the UN Convention on the Rights of Persons with Disabilities and how it may be used to guide best practice in this area. With an acknowledgement of historical abuses of genetic science, this article highlights the need to maintain caution as to the potential consequences of advancing genetic technologies on persons with disabilities and indeed on society as a whole.

]]>Precision Medicine and Advancing Genetic Technologies—Disability and Human Rights PerspectivesAisling de PaorPeter Blanckdoi: 10.3390/laws5030036Laws2016-08-30Laws2016-08-3053Article3610.3390/laws5030036http://www.mdpi.com/2075-471X/5/3/36Laws, Vol. 5, Pages 35: Disability in a Human Rights Contexthttp://www.mdpi.com/2075-471X/5/3/35
The Convention on the Rights of Persons with Disabilities (CRPD) is a modern human rights treaty with innovative components. It impacts on disability studies as well as human rights law. Two innovations are scrutinized in this article: the model of disability and the equality and discrimination concepts of the CRPD. It is argued that the CRPD manifests a shift from the medical model to the human rights model of disability. Six propositions are offered why and how the human rights model differs from the social model of disability. It is further maintained that the CRPD introduces a new definition of discrimination into international public law. The underlying equality concept can be categorized as transformative equality with both individual and group oriented components. The applied methodology of this research is legal doctrinal analysis and disability studies model analysis. The main finding is that the human rights model of disability improves the social model of disability. Three different models of disability can be attributed to different concepts of equality. The medical model corresponds with formal equality, while the social model with substantive equality and the human rights model can be linked with transformative equality.Laws, Vol. 5, Pages 35: Disability in a Human Rights Context

The Convention on the Rights of Persons with Disabilities (CRPD) is a modern human rights treaty with innovative components. It impacts on disability studies as well as human rights law. Two innovations are scrutinized in this article: the model of disability and the equality and discrimination concepts of the CRPD. It is argued that the CRPD manifests a shift from the medical model to the human rights model of disability. Six propositions are offered why and how the human rights model differs from the social model of disability. It is further maintained that the CRPD introduces a new definition of discrimination into international public law. The underlying equality concept can be categorized as transformative equality with both individual and group oriented components. The applied methodology of this research is legal doctrinal analysis and disability studies model analysis. The main finding is that the human rights model of disability improves the social model of disability. Three different models of disability can be attributed to different concepts of equality. The medical model corresponds with formal equality, while the social model with substantive equality and the human rights model can be linked with transformative equality.

]]>Disability in a Human Rights ContextTheresia Degenerdoi: 10.3390/laws5030035Laws2016-08-25Laws2016-08-2553Article3510.3390/laws5030035http://www.mdpi.com/2075-471X/5/3/35Laws, Vol. 5, Pages 34: The Cosmopolitan Future: A Feminist Approachhttp://www.mdpi.com/2075-471X/5/3/34
This study questions the “clash of civilizations” thesis. Referring to the cosmopolitanization process as defined by Beck and Sznaider (2010), I analyze the cosmopolitanization of feminism, that is, the gradual recognition of “the others’ others”, the women, through the evolution of their political rights—the right to elect and be elected—at a global level. In this context, the descriptive representation of women, their substantive representation, and their voices within civil society in the North and the South highlight the fact that feminism is undergoing a process of cosmopolitanization, albeit in a slow and sporadic way. I present this argument from a postcolonial feminist perspective and base my research on NGOs’ data and on data provided by the Inter-Parliamentary Union and UN-Women. First, I analyze the cosmpolitanization process as applied to feminism. Then, following Beck and Sznaider (2010), I describe how this process is articulated ‘from above’ (top-down cosmopolitanization), referring to electoral data from around the world and to international law. Further, I relate to the cosmopolitanization of feminism ‘from below’, referring to feminist theories, cyberfeminism and the global civil/feminist society. In conclusion, I discuss the common future of feminism and cosmopolitanism.Laws, Vol. 5, Pages 34: The Cosmopolitan Future: A Feminist Approach

This study questions the “clash of civilizations” thesis. Referring to the cosmopolitanization process as defined by Beck and Sznaider (2010), I analyze the cosmopolitanization of feminism, that is, the gradual recognition of “the others’ others”, the women, through the evolution of their political rights—the right to elect and be elected—at a global level. In this context, the descriptive representation of women, their substantive representation, and their voices within civil society in the North and the South highlight the fact that feminism is undergoing a process of cosmopolitanization, albeit in a slow and sporadic way. I present this argument from a postcolonial feminist perspective and base my research on NGOs’ data and on data provided by the Inter-Parliamentary Union and UN-Women. First, I analyze the cosmpolitanization process as applied to feminism. Then, following Beck and Sznaider (2010), I describe how this process is articulated ‘from above’ (top-down cosmopolitanization), referring to electoral data from around the world and to international law. Further, I relate to the cosmopolitanization of feminism ‘from below’, referring to feminist theories, cyberfeminism and the global civil/feminist society. In conclusion, I discuss the common future of feminism and cosmopolitanism.

]]>The Cosmopolitan Future: A Feminist ApproachSylvie Fogiel-Bijaouidoi: 10.3390/laws5030034Laws2016-08-19Laws2016-08-1953Article3410.3390/laws5030034http://www.mdpi.com/2075-471X/5/3/34Laws, Vol. 5, Pages 33: Lux In Arcana: Decoding the Right to Be Forgotten in Digital Archiveshttp://www.mdpi.com/2075-471X/5/3/33
On 13 May 2014, the European Court of Justice ruled that search engines such as Google had a duty to respect EU citizens’ right to be forgotten. That is, the search engines—deemed “controllers” of information under the Directive—were obligated in some circumstances to remove or de-list links from search results that pertain to information that infringes on an individual’s rights under the Directive. In the fall of 2015, the Spanish Supreme Court found itself obligated to determine the application of the digital right to be forgotten in a different context: This time in a digital newspaper archive. However, since the right to be forgotten is purely judicially-created and not yet memorialized in a regulation (other than through judicial interpretations of the European Directive 1995/46/EC of the European Parliament and Council of 24 October on the protection of individuals with regard to the processing of personal data and on the free movement of such data), it is therefore appropriate to analyze Spain’s recent Supreme Court ruling as an indicator of the future of the right. What does this decision mean for the future of the right to be forgotten?Laws, Vol. 5, Pages 33: Lux In Arcana: Decoding the Right to Be Forgotten in Digital Archives

On 13 May 2014, the European Court of Justice ruled that search engines such as Google had a duty to respect EU citizens’ right to be forgotten. That is, the search engines—deemed “controllers” of information under the Directive—were obligated in some circumstances to remove or de-list links from search results that pertain to information that infringes on an individual’s rights under the Directive. In the fall of 2015, the Spanish Supreme Court found itself obligated to determine the application of the digital right to be forgotten in a different context: This time in a digital newspaper archive. However, since the right to be forgotten is purely judicially-created and not yet memorialized in a regulation (other than through judicial interpretations of the European Directive 1995/46/EC of the European Parliament and Council of 24 October on the protection of individuals with regard to the processing of personal data and on the free movement of such data), it is therefore appropriate to analyze Spain’s recent Supreme Court ruling as an indicator of the future of the right. What does this decision mean for the future of the right to be forgotten?

]]>Lux In Arcana: Decoding the Right to Be Forgotten in Digital ArchivesPatricia Sanchez AbrilEugenio Pizarro Morenodoi: 10.3390/laws5030033Laws2016-08-12Laws2016-08-1253Case Report3310.3390/laws5030033http://www.mdpi.com/2075-471X/5/3/33Laws, Vol. 5, Pages 32: Protection Orders for Battered Women in Israelhttp://www.mdpi.com/2075-471X/5/3/32
The aim of the present study is to describe and re-consider the findings obtained from analysis of 260 protection orders that were granted in cases of violence by men against their partners. The Prevention of Domestic Violence Law was enacted in Israel in 1991. The data collection for the study took place 10 years later, after the 1996 amendment was enacted. In this article I revisit the data, the only empirical data on protection orders in Israel, and examine both the process of obtaining protection orders and several attendant issues that are relevant to the procedure, such as the remedies the law offers and the use (or lack of it) judges make of them. The study compares the first ex parte hearings and the second hearings, and the discussion and summary sections provide an insight into the problems emerging from the description of the situation in Israel in light of the current knowledge existing in the world today.Laws, Vol. 5, Pages 32: Protection Orders for Battered Women in Israel

The aim of the present study is to describe and re-consider the findings obtained from analysis of 260 protection orders that were granted in cases of violence by men against their partners. The Prevention of Domestic Violence Law was enacted in Israel in 1991. The data collection for the study took place 10 years later, after the 1996 amendment was enacted. In this article I revisit the data, the only empirical data on protection orders in Israel, and examine both the process of obtaining protection orders and several attendant issues that are relevant to the procedure, such as the remedies the law offers and the use (or lack of it) judges make of them. The study compares the first ex parte hearings and the second hearings, and the discussion and summary sections provide an insight into the problems emerging from the description of the situation in Israel in light of the current knowledge existing in the world today.

]]>Protection Orders for Battered Women in IsraelDalit Yassour-Borochowitzdoi: 10.3390/laws5030032Laws2016-08-12Laws2016-08-1253Article3210.3390/laws5030032http://www.mdpi.com/2075-471X/5/3/32Laws, Vol. 5, Pages 31: Subverting Justice: Socio-Legal Determinants of Impunity for Violence against Women in Guatemalahttp://www.mdpi.com/2075-471X/5/3/31
High levels of violence against women and impunity in Guatemala have reached crisis proportions and have received increased international attention in recent years. The phenomenon of feminicide (e.g., killings of women in the context of state impunity), is widespread in Latin America and particularly acute in Guatemala. Many (if not the majority) are rooted in violence that becomes concentrated in the family. In this paper, we propose that both the structure and application of the laws in Guatemala contribute to widespread impunity. Police and judges use laws other than those created to address violence against women in order to justify lack of enforcement. For example, judges resist issuing restraining orders, and police refuse to apply them because this can violate perpetrators’ property rights. Judges also refuse to apply domestic violence laws because this violates the principle of equality under the law. Women refuse to use the legal system to seek justice because alimony laws will not be enforced and women are economically dependent. The discriminatory fashion in which these laws are applied leads to widespread impunity. Even though laws on the books could be applied otherwise, those who implement them privilege laws that conflict with violence against women laws. While much scholarship focuses on individual-level motives for violence, we instead analyze the socio-legal environment and existing legal codes that enable continued failure to respond adequately to violence against women. The legal framework and the legal code itself are deeply shaped by the context in which they are written—the structural, gender, symbolic, everyday and long arm of political violence that permeate all aspects of life in Guatemala and exacerbate women’s vulnerability, especially the poor. We argue that this broader legal context endangers the lives of women in Guatemala. We also extend the socio-legal scholarship to highlight failures for victim’s families and the disempowerment of women as they enter relationships.Laws, Vol. 5, Pages 31: Subverting Justice: Socio-Legal Determinants of Impunity for Violence against Women in Guatemala

High levels of violence against women and impunity in Guatemala have reached crisis proportions and have received increased international attention in recent years. The phenomenon of feminicide (e.g., killings of women in the context of state impunity), is widespread in Latin America and particularly acute in Guatemala. Many (if not the majority) are rooted in violence that becomes concentrated in the family. In this paper, we propose that both the structure and application of the laws in Guatemala contribute to widespread impunity. Police and judges use laws other than those created to address violence against women in order to justify lack of enforcement. For example, judges resist issuing restraining orders, and police refuse to apply them because this can violate perpetrators’ property rights. Judges also refuse to apply domestic violence laws because this violates the principle of equality under the law. Women refuse to use the legal system to seek justice because alimony laws will not be enforced and women are economically dependent. The discriminatory fashion in which these laws are applied leads to widespread impunity. Even though laws on the books could be applied otherwise, those who implement them privilege laws that conflict with violence against women laws. While much scholarship focuses on individual-level motives for violence, we instead analyze the socio-legal environment and existing legal codes that enable continued failure to respond adequately to violence against women. The legal framework and the legal code itself are deeply shaped by the context in which they are written—the structural, gender, symbolic, everyday and long arm of political violence that permeate all aspects of life in Guatemala and exacerbate women’s vulnerability, especially the poor. We argue that this broader legal context endangers the lives of women in Guatemala. We also extend the socio-legal scholarship to highlight failures for victim’s families and the disempowerment of women as they enter relationships.

]]>Subverting Justice: Socio-Legal Determinants of Impunity for Violence against Women in GuatemalaCecilia MenjívarShannon Walshdoi: 10.3390/laws5030031Laws2016-07-11Laws2016-07-1153Article3110.3390/laws5030031http://www.mdpi.com/2075-471X/5/3/31Laws, Vol. 5, Pages 30: Using Risk to Assess the Legal Violence of Mandatory Detentionhttp://www.mdpi.com/2075-471X/5/3/30
Immigration mandatory detention is a particularly harsh example of the structural violence embedded in immigration enforcement. It deprives liberty without bond for immigrants with prior crimes, and assigns many individuals to the harsh conditions associated with unnecessary and even wrongful detention. Mandatory detention has been justified on the grounds that mandatory detainees are a danger to public safety. This article puts to the test this presumption of dangerousness among mandatory detainees, and finds, to the contrary, that immigrants with prior charges or convictions are no more dangerous than any other category of individuals in Immigration and Customs Enforcement (ICE) custody. Using the risk classification assessment (RCA) tool, which the author is the first to obtain through the Freedom of Information Act, the article contributes to the growing criticism of mandatory detention, providing evidence that many of those in mandatory detention should probably have never been detained.Laws, Vol. 5, Pages 30: Using Risk to Assess the Legal Violence of Mandatory Detention

Immigration mandatory detention is a particularly harsh example of the structural violence embedded in immigration enforcement. It deprives liberty without bond for immigrants with prior crimes, and assigns many individuals to the harsh conditions associated with unnecessary and even wrongful detention. Mandatory detention has been justified on the grounds that mandatory detainees are a danger to public safety. This article puts to the test this presumption of dangerousness among mandatory detainees, and finds, to the contrary, that immigrants with prior charges or convictions are no more dangerous than any other category of individuals in Immigration and Customs Enforcement (ICE) custody. Using the risk classification assessment (RCA) tool, which the author is the first to obtain through the Freedom of Information Act, the article contributes to the growing criticism of mandatory detention, providing evidence that many of those in mandatory detention should probably have never been detained.

]]>Using Risk to Assess the Legal Violence of Mandatory DetentionRobert Koulishdoi: 10.3390/laws5030030Laws2016-07-05Laws2016-07-0553Article3010.3390/laws5030030http://www.mdpi.com/2075-471X/5/3/30Laws, Vol. 5, Pages 29: Strengthening the Voice of Persons with Mental Health Problems in Legal Capacity Proceedingshttp://www.mdpi.com/2075-471X/5/3/29
Despite the standards set out by the United Nations Convention on the Rights of Persons with Disabilities (CRPD), states are reluctant to put an end to substitute decision-making regimes all at once. Persons with mental health problems are particularly affected by such regimes that are instituted by independent authorities through legal capacity proceedings. In order to allow the person to express their will and preferences throughout the proceedings, the right to be heard is of primary importance for the person concerned. The objective of this paper is to review the essential support mechanisms as well as procedural accommodations for the implementation of an equal and effective right to be heard for persons with mental health problems. Fulfilling the right to be heard in legal capacity proceedings is a step towards more individualized regimes that promote the autonomy of the person.Laws, Vol. 5, Pages 29: Strengthening the Voice of Persons with Mental Health Problems in Legal Capacity Proceedings

Despite the standards set out by the United Nations Convention on the Rights of Persons with Disabilities (CRPD), states are reluctant to put an end to substitute decision-making regimes all at once. Persons with mental health problems are particularly affected by such regimes that are instituted by independent authorities through legal capacity proceedings. In order to allow the person to express their will and preferences throughout the proceedings, the right to be heard is of primary importance for the person concerned. The objective of this paper is to review the essential support mechanisms as well as procedural accommodations for the implementation of an equal and effective right to be heard for persons with mental health problems. Fulfilling the right to be heard in legal capacity proceedings is a step towards more individualized regimes that promote the autonomy of the person.

]]>Strengthening the Voice of Persons with Mental Health Problems in Legal Capacity ProceedingsMarie Fallon-KundJerome Bickenbachdoi: 10.3390/laws5030029Laws2016-06-29Laws2016-06-2953Article2910.3390/laws5030029http://www.mdpi.com/2075-471X/5/3/29Laws, Vol. 5, Pages 28: Governance of the Internet of Things—From Infancy to First Attempts of Implementation?http://www.mdpi.com/2075-471X/5/3/28
In the course of the Internet’s growing importance within the last decade, the Internet of Things (IoT) has also been a subject of much debate. Being defined by the International Telecommunication Union (ITU) as the development of item identifications, sensor technologies and the ability to interact with the environment, the term Internet of Things, in more simple words, stands for a technology that is based on the connection of everyday objects to the Internet which exchange, aggregate and process information regarding their physical environment for providing value-added services to end-users. Notwithstanding the extensive research activities having been conducted in the recent past and the broad consensus as to the necessity of a basic normative framework for IoT applications, a final multilateral agreement is still missing. In this respect, an analysis of possible approaches solving the present challenges seems to be worthwhile to conduct.Laws, Vol. 5, Pages 28: Governance of the Internet of Things—From Infancy to First Attempts of Implementation?

In the course of the Internet’s growing importance within the last decade, the Internet of Things (IoT) has also been a subject of much debate. Being defined by the International Telecommunication Union (ITU) as the development of item identifications, sensor technologies and the ability to interact with the environment, the term Internet of Things, in more simple words, stands for a technology that is based on the connection of everyday objects to the Internet which exchange, aggregate and process information regarding their physical environment for providing value-added services to end-users. Notwithstanding the extensive research activities having been conducted in the recent past and the broad consensus as to the necessity of a basic normative framework for IoT applications, a final multilateral agreement is still missing. In this respect, an analysis of possible approaches solving the present challenges seems to be worthwhile to conduct.

]]>Governance of the Internet of Things—From Infancy to First Attempts of Implementation?Rolf Weberdoi: 10.3390/laws5030028Laws2016-06-24Laws2016-06-2453Article2810.3390/laws5030028http://www.mdpi.com/2075-471X/5/3/28Laws, Vol. 5, Pages 27: The Proportionality and Solidarity Principles and Their Impact on Privacy Laws in German Jurisprudencehttp://www.mdpi.com/2075-471X/5/2/27
Privacy laws and the use of information technology that guarantee confidentiality and information integrity are components of an individual’s rights in German jurisprudence. The protection of a person’s identity, information, ideas, feelings, emotions and particularly the way to communicate them is considered essential to human dignity. Extensive studies in these areas has made this protection a central pillar of law-related research in Germany.Laws, Vol. 5, Pages 27: The Proportionality and Solidarity Principles and Their Impact on Privacy Laws in German Jurisprudence

Privacy laws and the use of information technology that guarantee confidentiality and information integrity are components of an individual’s rights in German jurisprudence. The protection of a person’s identity, information, ideas, feelings, emotions and particularly the way to communicate them is considered essential to human dignity. Extensive studies in these areas has made this protection a central pillar of law-related research in Germany.

]]>The Proportionality and Solidarity Principles and Their Impact on Privacy Laws in German JurisprudenceKlaus SchmidtAlejandro Lajedoi: 10.3390/laws5020027Laws2016-06-15Laws2016-06-1552Article2710.3390/laws5020027http://www.mdpi.com/2075-471X/5/2/27Laws, Vol. 5, Pages 26: Uneasy Bedfellows: Social Justice and Neo-Liberal Practice in the Housing Markethttp://www.mdpi.com/2075-471X/5/2/26
The Australian state has ratified the Convention on the Rights of Persons with Disabilities (CRPD), which emphasizes a social justice-based, personalized service delivery model. The upcoming National Disability Insurance Scheme (NDIS) reflects this model and aims to facilitate people living with a disability being able to access services while housed within the private residential market, a move away from a state-based combined residential/service care model. However, in Australia’s neo-liberal housing market government intervention tends to shy away from policies that overtly impose restrictions on private firms. Therefore, in the absence of a subsidy from the state, the CRPD is of limited use in encouraging private developers to improve the appropriateness of its new built stock for people with a disability. A more persuasive approach is to highlight the size, diversity, and economic power of the disability-friendly housing consumer market when housing provision is separated from disability care delivery. This paper examines the feasibility of sustaining innovation in the volume builder housing market by aligning accessibility promoting changes to the existing innovation channels within Australian firms, suggesting that the NDIS concentrate on assisting the housing industry transition to a make-to-order model from the current make-to-forecast one.Laws, Vol. 5, Pages 26: Uneasy Bedfellows: Social Justice and Neo-Liberal Practice in the Housing Market

The Australian state has ratified the Convention on the Rights of Persons with Disabilities (CRPD), which emphasizes a social justice-based, personalized service delivery model. The upcoming National Disability Insurance Scheme (NDIS) reflects this model and aims to facilitate people living with a disability being able to access services while housed within the private residential market, a move away from a state-based combined residential/service care model. However, in Australia’s neo-liberal housing market government intervention tends to shy away from policies that overtly impose restrictions on private firms. Therefore, in the absence of a subsidy from the state, the CRPD is of limited use in encouraging private developers to improve the appropriateness of its new built stock for people with a disability. A more persuasive approach is to highlight the size, diversity, and economic power of the disability-friendly housing consumer market when housing provision is separated from disability care delivery. This paper examines the feasibility of sustaining innovation in the volume builder housing market by aligning accessibility promoting changes to the existing innovation channels within Australian firms, suggesting that the NDIS concentrate on assisting the housing industry transition to a make-to-order model from the current make-to-forecast one.

]]>Uneasy Bedfellows: Social Justice and Neo-Liberal Practice in the Housing MarketAndrew Marteldoi: 10.3390/laws5020026Laws2016-06-13Laws2016-06-1352Article2610.3390/laws5020026http://www.mdpi.com/2075-471X/5/2/26Laws, Vol. 5, Pages 25: The Death Penalty and Human Dignity: An Existential Fallacyhttp://www.mdpi.com/2075-471X/5/2/25
Proponents of capital punishment in the United States frequently cite the evolution from electrocution and hanging to lethal injection as an indication that the evolving standards of decency exhibited by such a transition demonstrate a respect for human dignity. This essay examines that claim by evaluating two standards for assessing whether an act comports with accepted definitions of human dignity: a personal-achievement model, based on work by economist Amartya Sen of Harvard University, and a universal and intrinsic approach to human dignity articulated by criminologist Robert Johnson of the American University. We evaluate Sen’s capabilities model through the lens of a condemned prisoner’s ability to achieve self-defined goals. We then assess Johnson’s claim that preserving human dignity requires an elimination of the death penalty, irrespective of any prisoner’s ability to lead a restricted, albeit goal-directed, existence.Laws, Vol. 5, Pages 25: The Death Penalty and Human Dignity: An Existential Fallacy

Proponents of capital punishment in the United States frequently cite the evolution from electrocution and hanging to lethal injection as an indication that the evolving standards of decency exhibited by such a transition demonstrate a respect for human dignity. This essay examines that claim by evaluating two standards for assessing whether an act comports with accepted definitions of human dignity: a personal-achievement model, based on work by economist Amartya Sen of Harvard University, and a universal and intrinsic approach to human dignity articulated by criminologist Robert Johnson of the American University. We evaluate Sen’s capabilities model through the lens of a condemned prisoner’s ability to achieve self-defined goals. We then assess Johnson’s claim that preserving human dignity requires an elimination of the death penalty, irrespective of any prisoner’s ability to lead a restricted, albeit goal-directed, existence.

]]>The Death Penalty and Human Dignity: An Existential FallacySusan NagelsenCharles Huckelburydoi: 10.3390/laws5020025Laws2016-06-02Laws2016-06-0252Essay2510.3390/laws5020025http://www.mdpi.com/2075-471X/5/2/25Laws, Vol. 5, Pages 24: Sustainable Indigenous Reindeer Herding as a Human Righthttp://www.mdpi.com/2075-471X/5/2/24
The specifically changing climate conditions in the arctic and subarctic tremendously affect the vegetation and the conditions of the snow. This, therefore, influences the possibilities for rangifer tarandus to feed. For many indigenous peoples across the global North, the herding of reindeer, however, is an extremely important source of income. When the increasing temperatures lead to snow melting a bit and then freezing over again, the reindeer loose access to their feed. This has led to the starvation of thousands of reindeer in Russia in 2013/2014. This paper will try to shed light on the background of the historic as well as the legal aspects of indigenous Sámi reindeer herders in the multi-state Sápmi area. While reindeer herding represents a significant livelihood for the indigenous population, the change in climate increasingly threatens the sustainability of this cornerstone of Sámi identity. This text aims to highlight existing rules of international human rights introduced to protect indigenous reindeer herders and the state’s duty to refrain from actions endangering indigenous livelihoods and to take positive action aimed at their protection.Laws, Vol. 5, Pages 24: Sustainable Indigenous Reindeer Herding as a Human Right

The specifically changing climate conditions in the arctic and subarctic tremendously affect the vegetation and the conditions of the snow. This, therefore, influences the possibilities for rangifer tarandus to feed. For many indigenous peoples across the global North, the herding of reindeer, however, is an extremely important source of income. When the increasing temperatures lead to snow melting a bit and then freezing over again, the reindeer loose access to their feed. This has led to the starvation of thousands of reindeer in Russia in 2013/2014. This paper will try to shed light on the background of the historic as well as the legal aspects of indigenous Sámi reindeer herders in the multi-state Sápmi area. While reindeer herding represents a significant livelihood for the indigenous population, the change in climate increasingly threatens the sustainability of this cornerstone of Sámi identity. This text aims to highlight existing rules of international human rights introduced to protect indigenous reindeer herders and the state’s duty to refrain from actions endangering indigenous livelihoods and to take positive action aimed at their protection.

]]>Sustainable Indigenous Reindeer Herding as a Human RightStefan KirchnerVanessa Fresedoi: 10.3390/laws5020024Laws2016-05-25Laws2016-05-2552Article2410.3390/laws5020024http://www.mdpi.com/2075-471X/5/2/24Laws, Vol. 5, Pages 23: Are Cutbacks to Personal Assistance Violating Sweden’s Obligations under the UN Convention on the Rights of Persons with Disabilities?http://www.mdpi.com/2075-471X/5/2/23
Article 19 of the UN Convention on the Rights of Persons with Disabilities requires states to ensure that disabled people can choose where and with whom they live with access to a range of services including personal assistance. Based on qualitative research of the implementation of Article 19 in Nordic countries, this paper focuses on Sweden, which was at the forefront of implementing personal assistance law and policy and has been the inspiration for many European countries. Instead of strengthening access to personal assistance, this study found that since the Swedish government ratified the Convention in 2008, there has been an increase in the numbers of people losing state-funded personal assistance and an increase in rejected applications. This paper examines the reasons for the deterioration of eligibility criteria for accessing personal assistance in Sweden. The findings shed light on how legal and administrative interpretations of “basic needs” are shifting from a social to a medical understanding. They also highlight a shift from collaborative policy making towards conflict, where courts have become the battleground for defining eligibility criteria. Drawing on the findings, we ask if Sweden is violating its obligations under the Convention.Laws, Vol. 5, Pages 23: Are Cutbacks to Personal Assistance Violating Sweden’s Obligations under the UN Convention on the Rights of Persons with Disabilities?

Article 19 of the UN Convention on the Rights of Persons with Disabilities requires states to ensure that disabled people can choose where and with whom they live with access to a range of services including personal assistance. Based on qualitative research of the implementation of Article 19 in Nordic countries, this paper focuses on Sweden, which was at the forefront of implementing personal assistance law and policy and has been the inspiration for many European countries. Instead of strengthening access to personal assistance, this study found that since the Swedish government ratified the Convention in 2008, there has been an increase in the numbers of people losing state-funded personal assistance and an increase in rejected applications. This paper examines the reasons for the deterioration of eligibility criteria for accessing personal assistance in Sweden. The findings shed light on how legal and administrative interpretations of “basic needs” are shifting from a social to a medical understanding. They also highlight a shift from collaborative policy making towards conflict, where courts have become the battleground for defining eligibility criteria. Drawing on the findings, we ask if Sweden is violating its obligations under the Convention.

]]>Are Cutbacks to Personal Assistance Violating Sweden’s Obligations under the UN Convention on the Rights of Persons with Disabilities?Ciara BrennanRannveig TraustadóttirPeter AnderbergJames Ricedoi: 10.3390/laws5020023Laws2016-05-16Laws2016-05-1652Article2310.3390/laws5020023http://www.mdpi.com/2075-471X/5/2/23Laws, Vol. 5, Pages 22: A Word of Caution: Human Rights, Disability, and Implementation of the Post-2015 Sustainable Development Goalshttp://www.mdpi.com/2075-471X/5/2/22
On 25 September 2015, the United Nations (UN) General Assembly unanimously voted for the post-2015 UN resolution on the post-2015 Sustainable Development Goal (SDG) agenda. This article argues that although the post-2015 SDG agenda is an advance on its precursor the Millennium Development Goals (MDGs)—especially for progressing the human rights of persons with disabilities in development settings, everywhere—it should nonetheless be approached with caution. This article will identify “three steps forward” for persons with disabilities within the broad content of the post-2015 SDGs, while also highlighting four potential “steps back”. It concludes persons with disabilities, disability rights advocates and their supporters must remain vigilant as the post-SDG UN resolution is now operationalised and implemented by UN Member States and their many partners. This is particularly so if the content of the Convention on the Rights of Persons with Disabilities is to be effectively integrated into the post-2015 development policy and planning landscape.Laws, Vol. 5, Pages 22: A Word of Caution: Human Rights, Disability, and Implementation of the Post-2015 Sustainable Development Goals

On 25 September 2015, the United Nations (UN) General Assembly unanimously voted for the post-2015 UN resolution on the post-2015 Sustainable Development Goal (SDG) agenda. This article argues that although the post-2015 SDG agenda is an advance on its precursor the Millennium Development Goals (MDGs)—especially for progressing the human rights of persons with disabilities in development settings, everywhere—it should nonetheless be approached with caution. This article will identify “three steps forward” for persons with disabilities within the broad content of the post-2015 SDGs, while also highlighting four potential “steps back”. It concludes persons with disabilities, disability rights advocates and their supporters must remain vigilant as the post-SDG UN resolution is now operationalised and implemented by UN Member States and their many partners. This is particularly so if the content of the Convention on the Rights of Persons with Disabilities is to be effectively integrated into the post-2015 development policy and planning landscape.

]]>A Word of Caution: Human Rights, Disability, and Implementation of the Post-2015 Sustainable Development GoalsClaire Brolandoi: 10.3390/laws5020022Laws2016-05-14Laws2016-05-1452Opinion2210.3390/laws5020022http://www.mdpi.com/2075-471X/5/2/22Laws, Vol. 5, Pages 21: NGO-Ization and Human Rights Law: The CRPD’s Civil Society Mandatehttp://www.mdpi.com/2075-471X/5/2/21
The Convention on the Rights of Persons with Disabilities (CRPD) is unique among international human rights instruments for including a “civil society mandate”. Within the convention, disabled persons organizations (DPOs) are identified as having the responsibility to “be involved and participate fully in the monitoring process” of the CRPD. In response to this mandate, international funders, NGOs (non-governmental organizations), and networks committed to the CPRD have begun to implement capacity-building programs that target grassroots DPOs with the goal of ensuring they become advocates and monitors of the CRPD. While the goals of these capacity-building programs are admirable, they must be critically assessed. The NGO-ization theory within development studies offers a framework for analyzing the potential unintended consequences of donors providing new funding, NGOs providing training, and global networks integrating local partners. NGO-ization studies have identified how grassroots associations are co-opted by outside actors through formalization and professionalization processes that significantly alter local groups and alienate members, thus making those associations less representative and less responsive to local needs and interests. Human rights scholars and international organizations focused on the CRPD should incorporate an NGO-ization perspective into their research and project-implementation to ensure that grassroots voices are heard and local needs addressed.Laws, Vol. 5, Pages 21: NGO-Ization and Human Rights Law: The CRPD’s Civil Society Mandate

The Convention on the Rights of Persons with Disabilities (CRPD) is unique among international human rights instruments for including a “civil society mandate”. Within the convention, disabled persons organizations (DPOs) are identified as having the responsibility to “be involved and participate fully in the monitoring process” of the CRPD. In response to this mandate, international funders, NGOs (non-governmental organizations), and networks committed to the CPRD have begun to implement capacity-building programs that target grassroots DPOs with the goal of ensuring they become advocates and monitors of the CRPD. While the goals of these capacity-building programs are admirable, they must be critically assessed. The NGO-ization theory within development studies offers a framework for analyzing the potential unintended consequences of donors providing new funding, NGOs providing training, and global networks integrating local partners. NGO-ization studies have identified how grassroots associations are co-opted by outside actors through formalization and professionalization processes that significantly alter local groups and alienate members, thus making those associations less representative and less responsive to local needs and interests. Human rights scholars and international organizations focused on the CRPD should incorporate an NGO-ization perspective into their research and project-implementation to ensure that grassroots voices are heard and local needs addressed.

]]>NGO-Ization and Human Rights Law: The CRPD’s Civil Society MandateStephen Meyersdoi: 10.3390/laws5020021Laws2016-05-11Laws2016-05-1152Article2110.3390/laws5020021http://www.mdpi.com/2075-471X/5/2/21Laws, Vol. 5, Pages 20: Legal Instruments for Marine Sanctuary in the High Arctichttp://www.mdpi.com/2075-471X/5/2/20
In response to heightened threat to Arctic marine biodiversity due to polar ice melt, the following paper seeks to use qualitative secondary research to analyze existing anthropogenic threat to Arctic marine life and to evaluate current efforts on the part of the Arctic Council to protect biodiversity through a network of state-created marine protected areas (MPAs). We conclude that the current method for MPA creation fails to offer adequate pathways for creation of MPAs in Areas Beyond National Jurisdiction (ABNJ), the high seas which fall beyond individual countries’ exclusive economic zones (EEZs). Thus, our central research question is to determine what legal basis and mechanisms exist for the creation of MPAs in ABNJs, with particular focus on the Arctic marine environment. In keeping with The United Nations Convention on Biological Diversity’s (UNCBD) precautionary approach, along with specific rules embodied within The United Nations Convention on the Law of the Sea (UNCLOS), we find a basis for creation of MPAs in the ABNJ. The text evaluates findings from the Boulogne-sur-Mer international conference of 2011 to suggest that such MPA creation in ABNJ could be approached via four pathways: regional agreement, UNCLOS implementing agreement, UNCBD additional protocol, or an Arctic Sanctuary modeled on the Antarctic Treaty. While we explore all four options, we argue that, due to geopolitical constraints, a comprehensive regional agreement offers the best path to High Arctic MPA creation.Laws, Vol. 5, Pages 20: Legal Instruments for Marine Sanctuary in the High Arctic

In response to heightened threat to Arctic marine biodiversity due to polar ice melt, the following paper seeks to use qualitative secondary research to analyze existing anthropogenic threat to Arctic marine life and to evaluate current efforts on the part of the Arctic Council to protect biodiversity through a network of state-created marine protected areas (MPAs). We conclude that the current method for MPA creation fails to offer adequate pathways for creation of MPAs in Areas Beyond National Jurisdiction (ABNJ), the high seas which fall beyond individual countries’ exclusive economic zones (EEZs). Thus, our central research question is to determine what legal basis and mechanisms exist for the creation of MPAs in ABNJs, with particular focus on the Arctic marine environment. In keeping with The United Nations Convention on Biological Diversity’s (UNCBD) precautionary approach, along with specific rules embodied within The United Nations Convention on the Law of the Sea (UNCLOS), we find a basis for creation of MPAs in the ABNJ. The text evaluates findings from the Boulogne-sur-Mer international conference of 2011 to suggest that such MPA creation in ABNJ could be approached via four pathways: regional agreement, UNCLOS implementing agreement, UNCBD additional protocol, or an Arctic Sanctuary modeled on the Antarctic Treaty. While we explore all four options, we argue that, due to geopolitical constraints, a comprehensive regional agreement offers the best path to High Arctic MPA creation.

]]>Legal Instruments for Marine Sanctuary in the High ArcticKathleen MorrisKamrul Hossaindoi: 10.3390/laws5020020Laws2016-05-05Laws2016-05-0552Article2010.3390/laws5020020http://www.mdpi.com/2075-471X/5/2/20Laws, Vol. 5, Pages 19: The Structure of Local Groundwater Law for Sustainable Groundwater Policy in Japanhttp://www.mdpi.com/2075-471X/5/2/19
Groundwater is extremely important to all societies. It provides in many places a reliable and ample supply of water for home use, irrigation, and industry. Japanese groundwater policy consists of complex laws and rules. The law governing groundwater nationally is inadequate. The main controversy has been that a river law exists only at a national level, whereas groundwater law does not exist in the national law of Japan. When local government faces problems with groundwater, the policy makers have to solve the problem following their local rules. Each local government solves problems case by case. Local government is used to obeying local rules and old traditions. Local common law becomes the local groundwater rule. Groundwater policy has recently been progressively promoted to an evolution of the local groundwater ordinances for sustainable groundwater conservation. This paper describes the complex legal framework of the related local groundwater policy and regulations under Japanese law. This is a bibliographic survey of Japanese groundwater laws and local groundwater ordinances. It is used to analyze the functions of local autonomy and the role of ordinances and to explain its changing functionalities of groundwater ordinances. Local ordinances are known as the strongest conservation legal network for sustainable groundwater policy in Japan. This is the first paper to try to explain the basic principles of the Japanese groundwater law for an international journal.Laws, Vol. 5, Pages 19: The Structure of Local Groundwater Law for Sustainable Groundwater Policy in Japan

Groundwater is extremely important to all societies. It provides in many places a reliable and ample supply of water for home use, irrigation, and industry. Japanese groundwater policy consists of complex laws and rules. The law governing groundwater nationally is inadequate. The main controversy has been that a river law exists only at a national level, whereas groundwater law does not exist in the national law of Japan. When local government faces problems with groundwater, the policy makers have to solve the problem following their local rules. Each local government solves problems case by case. Local government is used to obeying local rules and old traditions. Local common law becomes the local groundwater rule. Groundwater policy has recently been progressively promoted to an evolution of the local groundwater ordinances for sustainable groundwater conservation. This paper describes the complex legal framework of the related local groundwater policy and regulations under Japanese law. This is a bibliographic survey of Japanese groundwater laws and local groundwater ordinances. It is used to analyze the functions of local autonomy and the role of ordinances and to explain its changing functionalities of groundwater ordinances. Local ordinances are known as the strongest conservation legal network for sustainable groundwater policy in Japan. This is the first paper to try to explain the basic principles of the Japanese groundwater law for an international journal.

]]>The Structure of Local Groundwater Law for Sustainable Groundwater Policy in JapanSayaka Horidoi: 10.3390/laws5020019Laws2016-04-27Laws2016-04-2752Review1910.3390/laws5020019http://www.mdpi.com/2075-471X/5/2/19Laws, Vol. 5, Pages 18: Kids Sell: Celebrity Kids’ Right to Privacyhttp://www.mdpi.com/2075-471X/5/2/18
The lives of celebrities are often spotlighted in the media because of their newsworthiness; however, many celebrities argue that their right to privacy is often infringed upon. Concerns about celebrity privacy are not limited to the celebrities themselves and often expand to their children. As a result of their popularity, public interest has pushed paparazzi and journalists to pursue trivial and private details about the lives of both celebrities and their children. This paper investigates conflicting areas where the right to privacy and the right to know collide when dealing with the children of celebrities. In general, the courts have been unsympathetic to celebrity privacy claims, noting their newsworthiness and self-promoted characteristic. Unless the press violates news-gathering ethics or torts, the courts will often rule in favor of the media. However, the story becomes quite different when related to an infringement on the privacy of celebrities’ children. This paper argues that all children have a right to protect their privacy regardless of their parents’ social status. Children of celebrities should not be exempt to principles of privacy just because their parents are a celebrity. Furthermore, they should not be exposed by the media without the voluntary consent of their legal patrons. That is, the right of the media to publish and the newsworthiness of children of celebrities must be restrictedly acknowledged.Laws, Vol. 5, Pages 18: Kids Sell: Celebrity Kids’ Right to Privacy

The lives of celebrities are often spotlighted in the media because of their newsworthiness; however, many celebrities argue that their right to privacy is often infringed upon. Concerns about celebrity privacy are not limited to the celebrities themselves and often expand to their children. As a result of their popularity, public interest has pushed paparazzi and journalists to pursue trivial and private details about the lives of both celebrities and their children. This paper investigates conflicting areas where the right to privacy and the right to know collide when dealing with the children of celebrities. In general, the courts have been unsympathetic to celebrity privacy claims, noting their newsworthiness and self-promoted characteristic. Unless the press violates news-gathering ethics or torts, the courts will often rule in favor of the media. However, the story becomes quite different when related to an infringement on the privacy of celebrities’ children. This paper argues that all children have a right to protect their privacy regardless of their parents’ social status. Children of celebrities should not be exempt to principles of privacy just because their parents are a celebrity. Furthermore, they should not be exposed by the media without the voluntary consent of their legal patrons. That is, the right of the media to publish and the newsworthiness of children of celebrities must be restrictedly acknowledged.

]]>Kids Sell: Celebrity Kids’ Right to PrivacySeong Hongdoi: 10.3390/laws5020018Laws2016-04-07Laws2016-04-0752Article1810.3390/laws5020018http://www.mdpi.com/2075-471X/5/2/18Laws, Vol. 5, Pages 17: Can International Human Rights Law Help Restore Access to Justice for Disabled Workers?http://www.mdpi.com/2075-471X/5/2/17
The research literature indicates that legislative changes in recent years, including the introduction of tribunal fees, have made it harder for workers in general to enforce their rights under UK employment laws. Drawing on the author’s qualitative study, conducted in 2015 and with information from 265 participants, this paper finds that these legislative changes could be having disproportionate adverse impacts on disabled workers. Of particular note, fees had deterred substantial numbers from submitting discrimination claims; and it appeared that this reluctance to take legal action had in turn emboldened some employers to commit what might have been found to constitute unlawful acts if taken to tribunal. The paper goes onto consider whether these adverse impacts on disabled workers could render fees unlawful under UK and European equality and human rights law and/or could entail violations of rights under the United Nations Convention on the Rights of Persons with Disabilities. The paper concludes that the intent behind UK laws might (in relation to the lawfulness of fees) have been frustrated in the domestic courts and that the impact of any future successes in the domestic courts, or under international law, might be dependent upon public opinion and political expediency. The paper also briefly compares developments in Britain with developments in neighbouring and other comparable jurisdictions.Laws, Vol. 5, Pages 17: Can International Human Rights Law Help Restore Access to Justice for Disabled Workers?

The research literature indicates that legislative changes in recent years, including the introduction of tribunal fees, have made it harder for workers in general to enforce their rights under UK employment laws. Drawing on the author’s qualitative study, conducted in 2015 and with information from 265 participants, this paper finds that these legislative changes could be having disproportionate adverse impacts on disabled workers. Of particular note, fees had deterred substantial numbers from submitting discrimination claims; and it appeared that this reluctance to take legal action had in turn emboldened some employers to commit what might have been found to constitute unlawful acts if taken to tribunal. The paper goes onto consider whether these adverse impacts on disabled workers could render fees unlawful under UK and European equality and human rights law and/or could entail violations of rights under the United Nations Convention on the Rights of Persons with Disabilities. The paper concludes that the intent behind UK laws might (in relation to the lawfulness of fees) have been frustrated in the domestic courts and that the impact of any future successes in the domestic courts, or under international law, might be dependent upon public opinion and political expediency. The paper also briefly compares developments in Britain with developments in neighbouring and other comparable jurisdictions.

]]>Can International Human Rights Law Help Restore Access to Justice for Disabled Workers?Rupert Harwooddoi: 10.3390/laws5020017Laws2016-04-06Laws2016-04-0652Article1710.3390/laws5020017http://www.mdpi.com/2075-471X/5/2/17Laws, Vol. 5, Pages 16: Institutional Perceptions of Internal Security on the Relationship between “Sensitive Urban Zones” and Immigrant Criminalityhttp://www.mdpi.com/2075-471X/5/2/16
The Portuguese social sciences literature has recently begun to make references to so-called “sensitive urban zones” (SUZs), described as vulnerable zones on the outskirts of big cities (e.g., Lisbon and Setúbal) where the population suffers from poor socioeconomic conditions. The same literature has also described these zones as being areas where migrants, especially people from Portuguese-speaking African countries (PALOP), and the unemployed tend to congregate. Since the beginning of the century, these areas have seen the number of foreigners of certain ethnicities rising, especially after the last mass regularization of migrants. At the same time, police forces describe these zones as being primary intervention areas, leading to the targeting of SUZ residents. Moreover, certain new migrant groups to Portugal (and to these SUZs) are over-represented in Portuguese prisons, suggesting some bias on the part of the judicial system, who have historically described SUZs as areas of growing criminality and drug trafficking. As such, SUZ residents are thought to need greater social control, and more visible and selective policing. Within this framework, police have institutionalized a perception of SUZs as crime ghettos in need of targeting, these perceptions being reinforced by documentation concerning the “rise” of new forms of violent crime from abroad. Therefore, it is important to study these perceptions of crime as contributing to the characterization of SUZs as being areas of criminality, and how such perceptions are reinforced by the legislature’s designation of SUZs as being areas requiring “special policing strategies”. This article will focus on the balance between the selectivity of police and the justice system in Lisbon’s SUZs, with an emphasis on issues pertaining to immigration and crime. Moreover, we consider wider societal perceptions of crime, where stereotypes are constructed around a vulnerable population as needing social policies.Laws, Vol. 5, Pages 16: Institutional Perceptions of Internal Security on the Relationship between “Sensitive Urban Zones” and Immigrant Criminality

The Portuguese social sciences literature has recently begun to make references to so-called “sensitive urban zones” (SUZs), described as vulnerable zones on the outskirts of big cities (e.g., Lisbon and Setúbal) where the population suffers from poor socioeconomic conditions. The same literature has also described these zones as being areas where migrants, especially people from Portuguese-speaking African countries (PALOP), and the unemployed tend to congregate. Since the beginning of the century, these areas have seen the number of foreigners of certain ethnicities rising, especially after the last mass regularization of migrants. At the same time, police forces describe these zones as being primary intervention areas, leading to the targeting of SUZ residents. Moreover, certain new migrant groups to Portugal (and to these SUZs) are over-represented in Portuguese prisons, suggesting some bias on the part of the judicial system, who have historically described SUZs as areas of growing criminality and drug trafficking. As such, SUZ residents are thought to need greater social control, and more visible and selective policing. Within this framework, police have institutionalized a perception of SUZs as crime ghettos in need of targeting, these perceptions being reinforced by documentation concerning the “rise” of new forms of violent crime from abroad. Therefore, it is important to study these perceptions of crime as contributing to the characterization of SUZs as being areas of criminality, and how such perceptions are reinforced by the legislature’s designation of SUZs as being areas requiring “special policing strategies”. This article will focus on the balance between the selectivity of police and the justice system in Lisbon’s SUZs, with an emphasis on issues pertaining to immigration and crime. Moreover, we consider wider societal perceptions of crime, where stereotypes are constructed around a vulnerable population as needing social policies.

]]>Institutional Perceptions of Internal Security on the Relationship between “Sensitive Urban Zones” and Immigrant CriminalityMaria GuiaJoão Pedrosodoi: 10.3390/laws5020016Laws2016-03-30Laws2016-03-3052Article1610.3390/laws5020016http://www.mdpi.com/2075-471X/5/2/16Laws, Vol. 5, Pages 15: Germany without Coercive Treatment in Psychiatry—A 15 Month Real World Experiencehttp://www.mdpi.com/2075-471X/5/1/15
Coercive treatment with antipsychotic drugs was commonly used in German psychiatric institutions until it became a topic of substantial medical, legal and ethical controversy. In 2011 and 2012, several landmark decisions by Germany’s Constitutional Court and Federal Supreme Court challenged this practice in all but life-threatening emergencies. In March 2013, the new legal provisions governing coercive treatment took effect allowing coercive medication under stricter criteria. While mainstream psychiatry in Germany resumed the use of coercive medication, although less frequently than before 2012, there are examples where clinicians put an even greater emphasis on consensual treatment and did not return to coercive treatment. Data from a case study in a local mental health service suggest that the use of coercive medication could be made obsolete.Laws, Vol. 5, Pages 15: Germany without Coercive Treatment in Psychiatry—A 15 Month Real World Experience

Coercive treatment with antipsychotic drugs was commonly used in German psychiatric institutions until it became a topic of substantial medical, legal and ethical controversy. In 2011 and 2012, several landmark decisions by Germany’s Constitutional Court and Federal Supreme Court challenged this practice in all but life-threatening emergencies. In March 2013, the new legal provisions governing coercive treatment took effect allowing coercive medication under stricter criteria. While mainstream psychiatry in Germany resumed the use of coercive medication, although less frequently than before 2012, there are examples where clinicians put an even greater emphasis on consensual treatment and did not return to coercive treatment. Data from a case study in a local mental health service suggest that the use of coercive medication could be made obsolete.

]]>Germany without Coercive Treatment in Psychiatry—A 15 Month Real World ExperienceMartin Zinklerdoi: 10.3390/laws5010015Laws2016-03-17Laws2016-03-1751Article1510.3390/laws5010015http://www.mdpi.com/2075-471X/5/1/15Laws, Vol. 5, Pages 14: In the Best Interests of the Abuser: Coercive Control, Child Custody Proceedings and the “Expert” Assessments That Guide Judicial Determinationshttp://www.mdpi.com/2075-471X/5/1/14
This paper outlines why domestic violence (or more specifically, coercive control) should be crucial to child custody proceedings. What is known about parenting in the context of coercively controlling violence, and what the legislation directs courts to consider, is juxtaposed with the actuality of court decision making. Current knowledge about the recognition of domestic violence in judicial practice is overviewed, drawing particular attention to the role of the “expert” family assessment in determinations of a child’s “best interests”. A comprehensive synopsis of the existing research on these “expert” reports in Australia, the United Kingdom and the United States is provided. It is concluded that, in court proceedings the reality of living with coercively controlling violence and the potential on-going risks it poses to children and non-abusive parents, is typically negated. Instead, “best interests” considerations prioritise the maintenance of perpetrator/child relationships, and thus “abuser’s rights” over victim safety. Judicial officers are not experts in domestic violence and they can only make decisions on the basis of the evidence before them, the assessments made by the “experts” likely play an important role in best interest considerations. Of concern is current research that calls into serious question the expertise of these “experts” when it comes to proceedings involving allegations of coercively controlling violence.Laws, Vol. 5, Pages 14: In the Best Interests of the Abuser: Coercive Control, Child Custody Proceedings and the “Expert” Assessments That Guide Judicial Determinations

This paper outlines why domestic violence (or more specifically, coercive control) should be crucial to child custody proceedings. What is known about parenting in the context of coercively controlling violence, and what the legislation directs courts to consider, is juxtaposed with the actuality of court decision making. Current knowledge about the recognition of domestic violence in judicial practice is overviewed, drawing particular attention to the role of the “expert” family assessment in determinations of a child’s “best interests”. A comprehensive synopsis of the existing research on these “expert” reports in Australia, the United Kingdom and the United States is provided. It is concluded that, in court proceedings the reality of living with coercively controlling violence and the potential on-going risks it poses to children and non-abusive parents, is typically negated. Instead, “best interests” considerations prioritise the maintenance of perpetrator/child relationships, and thus “abuser’s rights” over victim safety. Judicial officers are not experts in domestic violence and they can only make decisions on the basis of the evidence before them, the assessments made by the “experts” likely play an important role in best interest considerations. Of concern is current research that calls into serious question the expertise of these “experts” when it comes to proceedings involving allegations of coercively controlling violence.

]]>In the Best Interests of the Abuser: Coercive Control, Child Custody Proceedings and the “Expert” Assessments That Guide Judicial DeterminationsSamantha Jeffriesdoi: 10.3390/laws5010014Laws2016-03-10Laws2016-03-1051Review1410.3390/laws5010014http://www.mdpi.com/2075-471X/5/1/14Laws, Vol. 5, Pages 13: Legal Capacity and Access to Justice: The Right to Participation in the CRPDhttp://www.mdpi.com/2075-471X/5/1/13
This article provides an applied analysis of Article 12 (Equal recognition before the law) of the Convention on the Rights of Persons with Disabilities (CRPD) and Article 13 (Access to justice) in the context of Article 6 (Women with disabilities). Recent literature on the CRPD has extended the analysis of Article 12 to consider its broader relevance for the interpretation of Article 13. The interaction between Article 12 and Article 13 is an emerging issue in CRPD debates. This article argues that the CRPD must be interpreted in light of current human rights theory. It provides a case study of the interaction between Article 12 and Article 13 based on the facts recited in the Court of Appeal case in the United Kingdom (RP v Nottingham City Council (2008)) and RP’s petition to the European Court of Human Rights (RP and Others v United Kingdom (2012)). The analysis shows that CRPD principles could and should have been applied in RP’s case. It concludes that current practices excluding people with disabilities from participation in legal proceedings are contrary to the CRPD.Laws, Vol. 5, Pages 13: Legal Capacity and Access to Justice: The Right to Participation in the CRPD

This article provides an applied analysis of Article 12 (Equal recognition before the law) of the Convention on the Rights of Persons with Disabilities (CRPD) and Article 13 (Access to justice) in the context of Article 6 (Women with disabilities). Recent literature on the CRPD has extended the analysis of Article 12 to consider its broader relevance for the interpretation of Article 13. The interaction between Article 12 and Article 13 is an emerging issue in CRPD debates. This article argues that the CRPD must be interpreted in light of current human rights theory. It provides a case study of the interaction between Article 12 and Article 13 based on the facts recited in the Court of Appeal case in the United Kingdom (RP v Nottingham City Council (2008)) and RP’s petition to the European Court of Human Rights (RP and Others v United Kingdom (2012)). The analysis shows that CRPD principles could and should have been applied in RP’s case. It concludes that current practices excluding people with disabilities from participation in legal proceedings are contrary to the CRPD.

]]>Legal Capacity and Access to Justice: The Right to Participation in the CRPDPenelope Wellerdoi: 10.3390/laws5010013Laws2016-03-08Laws2016-03-0851Article1310.3390/laws5010013http://www.mdpi.com/2075-471X/5/1/13Laws, Vol. 5, Pages 12: Can a Patriarchal World Be Corrected by a Criminal Law? Feminist Struggles, Penal Justice and Legal Reform in France (1970–1980)http://www.mdpi.com/2075-471X/5/1/12
This article describes (1) the relationship between the demands made by feminist movements of the 1970s in cases of sexual violence and criticism of the criminal justice system by these movements and other groups, including the prisoners’ movement; and (2) the relationship between this debate and the legal process of reforming the definition and punishment of rape. Two periods are analyzed. In the early 1970s, the common cause of very different movements targeting the law was the priority given to the defense against forms of repression and disciplinary institutions. After 1975, the demands of feminist and prisoner movements diverged and even conflicted. One camp called for an offensive approach to changing the legal punishment of rape whereas the other camp fought against penal reforms imposed by the government and, more specifically, against long sentences.Laws, Vol. 5, Pages 12: Can a Patriarchal World Be Corrected by a Criminal Law? Feminist Struggles, Penal Justice and Legal Reform in France (1970–1980)

This article describes (1) the relationship between the demands made by feminist movements of the 1970s in cases of sexual violence and criticism of the criminal justice system by these movements and other groups, including the prisoners’ movement; and (2) the relationship between this debate and the legal process of reforming the definition and punishment of rape. Two periods are analyzed. In the early 1970s, the common cause of very different movements targeting the law was the priority given to the defense against forms of repression and disciplinary institutions. After 1975, the demands of feminist and prisoner movements diverged and even conflicted. One camp called for an offensive approach to changing the legal punishment of rape whereas the other camp fought against penal reforms imposed by the government and, more specifically, against long sentences.

]]>Can a Patriarchal World Be Corrected by a Criminal Law? Feminist Struggles, Penal Justice and Legal Reform in France (1970–1980)Jean Bérarddoi: 10.3390/laws5010012Laws2016-03-04Laws2016-03-0451Article1210.3390/laws5010012http://www.mdpi.com/2075-471X/5/1/12Laws, Vol. 5, Pages 11: Feminist Jurisprudence, the Australian Legal System and Intimate Partner Sexual Violence: Fiction over Facthttp://www.mdpi.com/2075-471X/5/1/11
In this paper we briefly focus on intimate partner sexual violence (IPSV) and the Australian legal response, using recent Court judgements and Heather Wishik’s feminist jurisprudence framework for inquiry to guide investigation. The key questions being asked are: (1) What have been and what are now all women’s experiences of IPSV addressed by the substance and process of rape law? (2) What assumptions, descriptions, assertions and/or definitions of consent, corroboration and reporting does the law make in IPSV matters? (3) What is the area of mismatch, distortion or denial created by the differences between women’s life experiences of IPSV coercion and the law’s assumptions or imposed structures? (4) What patriarchal interests are served by the mismatch? The paper concludes with consideration of the limitations and benefits of law reform by reflecting on the findings of the paper.Laws, Vol. 5, Pages 11: Feminist Jurisprudence, the Australian Legal System and Intimate Partner Sexual Violence: Fiction over Fact

In this paper we briefly focus on intimate partner sexual violence (IPSV) and the Australian legal response, using recent Court judgements and Heather Wishik’s feminist jurisprudence framework for inquiry to guide investigation. The key questions being asked are: (1) What have been and what are now all women’s experiences of IPSV addressed by the substance and process of rape law? (2) What assumptions, descriptions, assertions and/or definitions of consent, corroboration and reporting does the law make in IPSV matters? (3) What is the area of mismatch, distortion or denial created by the differences between women’s life experiences of IPSV coercion and the law’s assumptions or imposed structures? (4) What patriarchal interests are served by the mismatch? The paper concludes with consideration of the limitations and benefits of law reform by reflecting on the findings of the paper.

]]>Feminist Jurisprudence, the Australian Legal System and Intimate Partner Sexual Violence: Fiction over FactJessica WhitePatricia Eastealdoi: 10.3390/laws5010011Laws2016-03-02Laws2016-03-0251Article1110.3390/laws5010011http://www.mdpi.com/2075-471X/5/1/11Laws, Vol. 5, Pages 10: Future Persons and Legal Persons: The Problematic Representation of the Future Child in the Regulation of Reproductionhttp://www.mdpi.com/2075-471X/5/1/10
Increasingly, the law has been paying attention to the future child and the prevention of preconceptual harms. Regulation on procreation often appeals to the future child’s interests in order to justify the prevention of the child’s existence. However, besides bioethical critique, there is also a legal-theoretical problem that has been neglected so far. This article argues that the future child whose existence is prevented by an appeal to its own interests does not fit in the “regular” concept of law’s subject: the legal person. This creates two representation problems: First, the law lacks the proper vocabulary to address and represent this non-existent entity. Second, the appeal to its own interests as a justification of the prevention of the child’s existence creates a paradox, as the future child is treated as a subject and a non-subject at the same time. These two representation problems complicate the way law can “deal with” this singular entity. Since the vocabulary of the legal person is not equipped to articulate the future child, this article argues that further research is needed to understand what the future child is and how it functions in law.Laws, Vol. 5, Pages 10: Future Persons and Legal Persons: The Problematic Representation of the Future Child in the Regulation of Reproduction

Increasingly, the law has been paying attention to the future child and the prevention of preconceptual harms. Regulation on procreation often appeals to the future child’s interests in order to justify the prevention of the child’s existence. However, besides bioethical critique, there is also a legal-theoretical problem that has been neglected so far. This article argues that the future child whose existence is prevented by an appeal to its own interests does not fit in the “regular” concept of law’s subject: the legal person. This creates two representation problems: First, the law lacks the proper vocabulary to address and represent this non-existent entity. Second, the appeal to its own interests as a justification of the prevention of the child’s existence creates a paradox, as the future child is treated as a subject and a non-subject at the same time. These two representation problems complicate the way law can “deal with” this singular entity. Since the vocabulary of the legal person is not equipped to articulate the future child, this article argues that further research is needed to understand what the future child is and how it functions in law.

]]>Future Persons and Legal Persons: The Problematic Representation of the Future Child in the Regulation of ReproductionLisette Ten Haafdoi: 10.3390/laws5010010Laws2016-02-26Laws2016-02-2651Article1010.3390/laws5010010http://www.mdpi.com/2075-471X/5/1/10Laws, Vol. 5, Pages 9: Access to Preventive Health Care for Undocumented Migrants: A Comparative Study of Germany, The Netherlands and Spain from a Human Rights Perspectivehttp://www.mdpi.com/2075-471X/5/1/9
The present study analyzes the preventive health care provisions for nationals and undocumented migrants in Germany, the Netherlands and Spain in light of four indicators derived from the United Nations Committee on Economic, Social and Cultural Rights’ General Comment 14 (GC 14). These indicators are (i) immunization; (ii) education and information; (iii) regular screening programs; and (iv) the promotion of the underlying determinants of health. It aims to answer the question of what preventive health care services for undocumented migrants are provided for in Germany, the Netherlands and Spain and how this should be evaluated from a human rights perspective. The study reveals that the access to preventive health care for undocumented migrants is largely insufficient in all three countries but most extensive in the Netherlands and least extensive in Germany. The paper concludes that a human rights-based approach to health law and policy can help to refine and concretize the individual rights and state obligations for the preventive health care of undocumented migrants. While the human rights framework is still insufficiently clear in some respects, the research concedes the added value of a rights-based approach as an evaluation tool, advocacy framework and moral principle to keep in mind when adopting or evaluating state policies in the health sector.Laws, Vol. 5, Pages 9: Access to Preventive Health Care for Undocumented Migrants: A Comparative Study of Germany, The Netherlands and Spain from a Human Rights Perspective

The present study analyzes the preventive health care provisions for nationals and undocumented migrants in Germany, the Netherlands and Spain in light of four indicators derived from the United Nations Committee on Economic, Social and Cultural Rights’ General Comment 14 (GC 14). These indicators are (i) immunization; (ii) education and information; (iii) regular screening programs; and (iv) the promotion of the underlying determinants of health. It aims to answer the question of what preventive health care services for undocumented migrants are provided for in Germany, the Netherlands and Spain and how this should be evaluated from a human rights perspective. The study reveals that the access to preventive health care for undocumented migrants is largely insufficient in all three countries but most extensive in the Netherlands and least extensive in Germany. The paper concludes that a human rights-based approach to health law and policy can help to refine and concretize the individual rights and state obligations for the preventive health care of undocumented migrants. While the human rights framework is still insufficiently clear in some respects, the research concedes the added value of a rights-based approach as an evaluation tool, advocacy framework and moral principle to keep in mind when adopting or evaluating state policies in the health sector.

]]>Access to Preventive Health Care for Undocumented Migrants: A Comparative Study of Germany, The Netherlands and Spain from a Human Rights PerspectiveVeronika FlegarMaría DalliBrigit Toebesdoi: 10.3390/laws5010009Laws2016-02-25Laws2016-02-2551Article910.3390/laws5010009http://www.mdpi.com/2075-471X/5/1/9Laws, Vol. 5, Pages 8: Dissecting Marriage Fraud as a True Immigration Crimehttp://www.mdpi.com/2075-471X/5/1/8
Marriage fraud is considered a true immigration crime in that not only does it carry penalties related to an immigrant’s status, but also severe penal consequences under federal law. This paper seeks to explore how a case of marriage fraud is discovered, investigated and prosecuted by immigration officials, and, ultimately, by the judicial system. The paper focuses on recent immigration law developments and lays out a blueprint of a marriage fraud case under the 1986 Marriage Fraud Amendments to the Immigration and Naturalization Act.Laws, Vol. 5, Pages 8: Dissecting Marriage Fraud as a True Immigration Crime

Marriage fraud is considered a true immigration crime in that not only does it carry penalties related to an immigrant’s status, but also severe penal consequences under federal law. This paper seeks to explore how a case of marriage fraud is discovered, investigated and prosecuted by immigration officials, and, ultimately, by the judicial system. The paper focuses on recent immigration law developments and lays out a blueprint of a marriage fraud case under the 1986 Marriage Fraud Amendments to the Immigration and Naturalization Act.

]]>Dissecting Marriage Fraud as a True Immigration CrimeGeorge Asllanidoi: 10.3390/laws5010008Laws2016-02-24Laws2016-02-2451Article810.3390/laws5010008http://www.mdpi.com/2075-471X/5/1/8Laws, Vol. 5, Pages 7: Marine World Heritage and the Quest for Sustainabilityhttp://www.mdpi.com/2075-471X/5/1/7
This paper discusses the contribution of marine sites of outstanding universal value, enlisted as natural and mixed sites in the World Heritage List, to the sustainability of marine resources and protection schemes. Departing from the strict application of the Convention’s criteria, the management requirements and good practices will be discussed, with emphasis on the dissemination of the latter in other (non)protected areas as well as its contribution, in terms of the integrity principle to be met, to the expansion of this approach in areas beyond national jurisdiction through the development of synergies with existing and emerging marine environment protection regimes.Laws, Vol. 5, Pages 7: Marine World Heritage and the Quest for Sustainability

This paper discusses the contribution of marine sites of outstanding universal value, enlisted as natural and mixed sites in the World Heritage List, to the sustainability of marine resources and protection schemes. Departing from the strict application of the Convention’s criteria, the management requirements and good practices will be discussed, with emphasis on the dissemination of the latter in other (non)protected areas as well as its contribution, in terms of the integrity principle to be met, to the expansion of this approach in areas beyond national jurisdiction through the development of synergies with existing and emerging marine environment protection regimes.

]]>Marine World Heritage and the Quest for SustainabilityAntonia Zervakidoi: 10.3390/laws5010007Laws2016-02-23Laws2016-02-2351Article710.3390/laws5010007http://www.mdpi.com/2075-471X/5/1/7